FEDERAL COURT OF AUSTRALIA Kumar v Minister for Immigration & Multicultural Affairs [2000] FCA 793 MIGRATION – family residence visa – application for review of decision refusing to waive condition of visitor's visa disentitling holder from grant when application made in Australia – whether decision of delegate involved an error of law being an error involving an incorrect interpretation of the applicable law – whether delegate erred by forming view that a filial bond could not constitute compelling and compassionate circumstances – whether delegate erred by ignoring applicant's submissions Migration Act 1958 (Cth) ss 41, 475, 476 Migration Regulations 1994 (Cth) reg 2.05; Sch 8 item 8503 RAJESH KUMAR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 186 OF 2000 EMMETT J 8 JUNE 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 186 OF 2000 BETWEEN: RAJESH KUMAR APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 8 JUNE 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 186 OF 2000 BETWEEN: RAJESH KUMAR APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: EMMETT J DATE: 8 JUNE 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a national of Fiji and was a resident of Fiji at least until 1998. On 2 February 1998 the applicant was granted a visitor's visa subject to the following condition: "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 applicant has applied for an order of review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refusing to waive that condition. 2 The condition was attached pursuant to section 41 of the Migration Act 1958 (Cth) ("the Migration Act"). Section 41 provides as follows: "(1) The regulations may provide that visas, or visas of a specified class, are subject to special 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) 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, which, without limiting the generality of this paragraph, may be restrictions on doing (i) any work; or (ii) work other than specified work; or (iii) work of a specified kind. (2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind prescribed 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 are as permitted by the regulations for the purposes of this subsection." Item 8503 of schedule 8 to the Migration Regulations1994 (Cth) provides for and authorises a condition in the terms contemplated by section 41(2)(a). 3 Regulation 2.05(4)(a) provides as follows: "For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2A) 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…" 4 The applicant arrived in Australia on 1 March 1998 and, on 10 June 1998, lodged an application for a permanent residence visa, claiming to be a special need relative of his sister, Sumintra Prasad, who is "nominator" in the application. On 14 January 2000 the Department of Immigration and Multicultural Affairs ("the Department") wrote to the applicant. The Department's letter referred to the application and the condition upon which the visitor's visa had been granted to the applicant. The letter then referred to waiver under section 41(2A) and continued: "For this to occur, there must be compelling and compassionate circumstances that relate to a major in your circumstances since the visa with the condition .8503 was issued. Please provide detailed information as to why you consider there are compelling and compassionate circumstances that warrant a consideration of the waiver of this condition." The letter enclosed further information concerning the circumstances that might be considered to be "compelling and compassionate circumstances". 5 On 25 January 2000 the solicitors for the applicant wrote to the Department enclosing documents relating to the family of the applicant. The letter then made the following submissions: "1. The Applicant arrived in Australia with his family on visitor's visa. The Applicant's father and other siblings are residents in Australia. 2. Sumintra Prasad [the applicant's sister] has a serious illness or serious medical condition and requires constant monitoring and supervision. This would itself constitute compelling and compassionate circumstances. 3. The Applicant was aware that his sister, Sumintra Prasad, had mental problems but he was always under the assumption that his other siblings would be taking care of her. 4. When the Applicant arrived in Australia, he saw that his other siblings had problems of their own and were not in a position to take care of Sumintra Prasad. 5. The Applicant agreed to take care of his sister Sumintra Prasad only because there was nobody else to look after her and therefore lodged the present applicant to remain in Australia. 6. If the Applicant is not here to take care of his sister Sumintra Prasad, then she will be left in the care of charitable organisations or other government departments. We believe that these organizations or departments have limited resources and will not be able to provide the care required and which the Applicant is able to provide. 7. The Applicant and his family have been looking after Sumintra Prasad and have been taking care of her since they arrived in Australia. 8. The Applicant has become attached to his sister Sumintra Prasad over the period and his sister has also become close to the Applicant and his family. 9. The Applicant would not have been in this situation if he had not come to Australia to visit his father and his siblings. 10. We submit that these are the compelling and compassionate grounds, which did not exist when the Applicant first arrived in Australia. 11. We submit that this has been a major change in the Applicant's circumstance, which is outside his control." 6 The correspondence and other materials enclosed with the letter included communications from the Blacktown City Mental Health Service and the Wentworth Area Health Service concerning the condition of the applicant's sister and letters from his brother and father indicating their difficulty in looking after the applicant's sister. The Department appears to have treated the letter as an application for the waiver of the condition as contemplated by section 41(2A). 7 On 24 February 2000 the Department wrote to the applicant saying that it had been determined that the applicant had not made a valid application to remain permanently in Australia. The Department's letter referred to the fact that the applicant's visa was endorsed with the condition. The letter said that the condition prohibited the grant of a further substantive visa while the applicant remained in Australia. 8 There is in evidence before me a Departmental minute dated 14 February 2000 purporting to deal with the applicant's request for waiver of the condition. The minute appears to be the Departmental record of the Minister's decision under section 41(2A). By the minute, an officer of the Department recommended refusal of the request. That recommendation was approved on 21 February 2000. 9 The minute outlined the background to the applicant's application for a permanent residence visa and cited the statutory provisions to which I have referred. The minute went on to say as follows: "The nominator has been suffering from Schizophrenia for the past 20 years and applicant was aware of this at the time he applied for the visitor visa. He had visited Australia in 1997 staying from 22 February until 13 May, a total of almost 3 months. Also, although family in Australia have stated that they are unable to assist the nominator they have provided no claims nor evidence that their circumstances have changed significantly since 02.02.1998. I accept that there is evidence that the nominator has mental health problems, however, there are no claims nor evidence to show that 'compelling and compassionate circumstances have developed' since the grant of the subclass 676 (Short Stay) visitor visa on 02.02.1998. I believe that the applicant's request for a waiver of the .8503- No Further Stay condition fails to meet regulatory and policy provisions and should be refused." 10 The application before me as presently pressed is brought under section 475 of the Migration Act. The ground relied on in is that contained in section 476(1)(e) of the Migration Act, which is in the following terms: "(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;" In the course of argument counsel for the applicant made clear that reliance was placed only on the first limb of section 476(1)(e), namely, that there was an error of law involving an incorrect interpretation of the applicable law. The applicable law was said to be regulation 2.05(4)(a). 11 There were two alternative ways in which the case was developed on behalf of the applicant. In the minute, to which I have referred, express reference is made to the fact that Sumintra Prasad's family in Australia have provided no claims nor evidence that their circumstances have changed significantly since the grant of the visitor visa to the applicant. 12 It was said that that should be taken to be a response to paragraph 7 of the submissions made on behalf of the applicant to the effect that the applicant and his family have been looking after Sumintra Prasad and have been taking care of her since they arrived in Australia. However, there is no express reference in the minute to the matter raised in paragraph 8 of the submissions, namely, that the applicant has become attached to his sister over the period of his stay in Australia and his sister has also become close to the applicant and his family. 13 It was acknowledged on behalf of the applicant that the failure to take into account what might be a relevant consideration was not a ground upon which the Court could interfere under section 475 of the Migration Act. However, it was said that the absence of any reference to "the attachment" that had developed between the applicant and his sister gives rise to an inference that the delegate failed to mention that matter because of an erroneous view taken as to the meaning of regulation 2.05(4)(a). It was said that an inference should be drawn that the delegate had formed the view that such an attachment could not constitute compelling and compassionate circumstances within the meaning of regulation 2.05. 14 The Minister does not contend that the formation of an attachment between brother and sister could not constitute circumstances within regulation 2.05(4)(a). However, the question is whether an inference should be drawn that the failure to refer to that matter in explicit terms gives rise to an inference that the delegate formed a view as to the meaning of regulation 2.05(4)(a) that would exclude such matter being taken into account. 15 The alternative way in which the argument was advanced on behalf of the applicant, was that in saying that "there are no claims nor evidence to show that compelling and compassionate circumstances have developed", the delegate was in effect, ignoring the submission made in paragraph 10 of the letter of 10 January 2000. That involves reading the minute as saying: · there are no claims that compelling and compassionate circumstances have developed; and · there is no evidence to show that compelling and compassionate circumstances have developed. I do not regard that as a fair reading of the relevant paragraph of the minute. I consider that the paragraph, fairly construed, says: · there are no claims to show that compelling, compassionate circumstances have developed; and · there is no evidence to show that compelling and compassionate circumstances have developed. 16 It is apparent that the delegate did in fact have regard to the solicitor's letter of 25 January 2000. I do not see any reason for drawing an inference that the absence of an express reference to "the attachment" between brother and sister indicates that the delegate had formed an incorrect view as to the proper construction of regulation 2.05(4)(a). 17 The submission of 25 January 2000 does not suggest that "the attachment" between brother and sister is in any way unusual or other than the normal filial attachment that would exist between siblings. Nor does it suggest that Sumintra Prasad had developed any particular or special dependence upon her brother and his family. The letter simply says that the members of Sumintra Prasad's family who are resident in Australia were not in the position to take care of her. The letter does not suggest that their circumstances had changed. It merely makes the assertion that the applicant and his family had been looking after Sumintra Prasad and taking care of her since their arrival and that they had become attached to her and she had become close to them. 18 I consider that, on a fair reading of the minute, the delegate was simply saying that, having considered the matters raised by the solicitor's letter, the delegate did not consider that those circumstances were compelling and compassionate within the meaning of the regulation. That, it seems to me, is essentially - indeed entirely - a conclusion of fact based upon the material before the delegate. I do not consider that the terms of the minute indicate any error of law within the meaning of section 476(1)(e). 19 The solicitor for the Minister raised the question of the qualifications that are contained in regulation 2.05(4)(a); in particular the requirement that the circumstances must be such that the applicant had no control over them. Some argument was addressed to me on the question of whether or not, in the circumstances, that paragraph would have been satisfied. 20 That is not a matter that was considered by the delegate, having regard to the conclusion reached by the delegate that there were no compelling and compassionate circumstances. Whether or not in the present case the applicant had control over the circumstances that had developed, assuming they could be characterised as compelling and compassionate, would be a matter for the delegate. It would not be a matter that would properly be the subject of review by the Court. In any event, in the light of the conclusion that I have reached, that question does not arise. 21 It follows, in my opinion, that the application should be dismissed. I will order the applicant to pay the Minister's costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 16 June 2000 Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Jamnadas & Associates Solicitor for the Respondent: Ms D Watson for the Australian Government Solicitor Date of Hearing: 8 June 2000 Date of Judgment: 8 June 2000