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

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 114 OF 2002

BETWEEN: SIONE VAHAAKOLO

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 23 APRIL 2002

WHERE MADE: 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.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 114 OF 2002

BETWEEN: SIONE VAHAAKOLO

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 23 APRIL 2002

PLACE: SYDNEY

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: