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MIGRATION - Mandatory visa conditions - review of Minister's decision - whether action of Minister's delegate negates mandatory conditions on original visa - waiver of condition.

Trinh v Minister for Immigration [2004] FMCA 945 (26 November 2004)

Trinh v Minister for Immigration [2004] FMCA 945 (26 November 2004)
Last Updated: 25 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRINH v MINISTER FOR IMMIGRATION
[2004] FMCA 945




MIGRATION - Mandatory visa conditions - review of Minister's decision - whether action of Minister's delegate negates mandatory conditions on original visa - waiver of condition.




Judiciary Act 1903, s.39

Migration Act 1958, ss.41(1), 41(2), 41(2A), 41(3), 67

Migration Regulations 1994, regs.2.05, 2.05(1), 2.05(4)

VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243

Applicant:
MINH DANG TRINH




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MLG 306 of 2004




Delivered on:


26 November 2004




Delivered at:


Melbourne




Hearing date:


15 October 2004




Judgment of:


O'Dwyer FM




REPRESENTATION

Counsel for the Applicant:


Mr. D. Langmead




Solicitors for the Applicant:


Nguyen Tan Hai




Counsel for the Respondent:


Dr. S. Donaghue




Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The application for an order for review filed on 3 February 2004 as amended by leave of the Court on 15 October 2004 is dismissed.

(2) The Applicant shall pay the Respondent's costs fixed in the sum $4,000.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

(1) FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MLG 306 of 2004

MINH DANG TRINH



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
Introduction

1. By an application filed on 3 February 2004 the Applicant seeks to review the decision of the delegate of the Respondent made on

8 January 2004. That decision was to refuse the Applicant's application for a visa in subclass 820/801 of the Residence Combined - Spouse class (the spouse visa) as provided in the Migration Regulations 1994 (the regulations).

2. The application seeks declarations that the Applicant's visa on which he entered Australia was not subject to condition 8503; that the application for a 820/801class visa is valid; and that he is entitled to have his visa application considered according to law. This Court does not have the jurisdiction to make the declarations sought, but with the consent of the Respondent the Applicant was granted leave to bring the proceeding under s.39B of the Judiciary Act 1903 to seek a writ of mandamus.

Background

3. The Applicant is a citizen of Vietnam and a permanent resident of France. On 12 August 2003, at the Australian Embassy in Paris, France, the Applicant was granted a Sponsored Visitor Subclass 679 visa (the original visa). That visa was evidenced by a label affixed to the Applicant's passport. The label indicated that the original visa was subject to a number of conditions, including condition 8503.

4. Condition 8503 provides 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. The Applicant arrived in Australia on 7 October 2003. It is agreed that on arrival an unidentified immigration officer at the Melbourne Airport noticed a discrepancy between the passport number shown on the label and the Applicant's passport number. This was manifestly a clerical error and as a result, the immigration officer, in order not to inconvenience the Applicant and prevent his entry, cancelled the original visa label by stamping it, "Label Inoperative", giving where provided a hand written reason, namely "Admin. Error". A new visa label was affixed by the immigration officer which did not set out any conditions. The new label was engrossed with the following, "CONDITIONS MIG REGS SCHED 8 NIL". This engrossment is said to, on the face of it, indicate that no conditions under Schedule 8 of the regulations apply.

6. On 11 October 2003 the Applicant married an Australian citizen.

7. On 11 November 2003, the Applicant lodged an application for the spouse visa with the Respondent's Department; which is, in the language of the legislation, a substantive visa.

8. In furtherance of that application, the Applicant paid fees of $1,795.00, underwent a medical examination, a blood test and an X-ray as required by the Department. For the medical services, he paid $270.00. He also submitted to a police character check which confirmed the Applicant's good character in that regard.

9. As is normal, the Applicant and his wife were invited to attend an interview. At the interview on 7 January 2004 he was requested to provide his passport for checking; which he did. There was no suggestion by the interviewing officer that he was not entitled to have lodged his application.

10. Later that day, by telephone, the Applicant was told to attend again on the officer the next day. On attending on 8 January 2004, the Applicant was informed that his application was invalid and was provided with a letter that stated that he did not satisfy condition 8503. The letter further stated that that condition applied to him unless it had previously been waived by the Respondent under ss.41(2A) of the Migration Act 1958 (the Act).

The competing contentions

11. It was contended by the Applicant that the only conditions on the original visa were that he was not to arrive after 1 November 2003 and could stay for 3 months only. The basis of this contention is that a visa only exists when the Minister causes a record of it to be made (see s.67 of the Act). The Applicant's contention is that the only record of the visa is embodied in a document described as "Visa Detail" and exhibited at page 4 of the Court Book (the visa record). The visa record shows no entry where visa conditions are to be listed. It is noted, however, the visa record clearly identifies the subject visa as being a "UL 679" visa. Although a label was affixed to the passport in France which did indicate that condition 8503 applied, it was contended the label did not reflect the true status of the visa as evidenced in the visa record. It was further contended that when that label was stamped as inoperative and a new one affixed that did not specify condition 8503, the new label reflected the correct position as evidenced by the visa record. It is conceded by both parties that a label is evidence of a visa, but is not the visa itself. For that, one looks to the visa record.

12. The Respondent simply states:

(i) there is no issue that the subject visa granted is one described as being a subclass 679 visa;

(ii) all visas of that subclass have four mandatory conditions, one of which is condition 8503; and

(iii) it does not matter whether conditions are spelt out in the visa record or on labels, they are imposed by force of law.

The condition is not imposed as a matter of discretion by the person who grants the visa at the time of it being granted.

The evidence of the visa follows the granting of it, and the evidence cannot alter the intrinsic nature of the visa and the mandatory conditions that attach to it on being granted (see VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 per Gray J at [57]).

13. In support of those contentions the Respondent relies on ss.41(1) and (2) of the Act which state:

"(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) ..."

14. Regulation 2.05(1) of the regulations provides that:

"(1) For the purposes of subsection 41 (1) of the Act (which deals with conditions that apply to a visa), the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 that relates to visas of the subclass in which the visa is included."

15. Schedule 2 provides for "Subclass 679 - Sponsored Family Visitor (Short Stay)". Clause 679.6 of Schedule 2 imposes four conditions on such visas, one of which is condition 8503.

16. Simply put, a subclass 679 visa, as identified in the visa record as the one granted to the Applicant in Paris, is one that is subject to the mandatory condition 8503 pursuant to ss.41(1) and allowed under ss.41(2).

17. In response, the Applicant contends that the condition is not mandatory for such a visa. The Applicant relies on ss.41(3) of the Act which states:

"(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 purpose of this subsection."

18. The Applicant argued that ss.41(3) gives a discretionary power to impose the condition articulated in ss.41(2)(a) (being the condition described in the regulations as condition 8503). For it to be operative, it was contended, it must be specified on the visa record as evidence of it being imposed. The Applicant argued that ss.41(3) was a subset of

ss.41(2). Whereas the Respondent argued that ss.41(2) was a subset of ss.41(1) and that ss.41(3) provided for additional conditions over and above those that might have been specified as mandatory for a specified class of visa.

19. In my view, the language of ss.41(2A) supports the contention of the Respondent that ss.41(1) and 41(2)(a) should be read together and that ss.41(2) is a subset of ss.41(1). Subsection 41(2A) clearly draws a distinction between ss.41(2) and 41(3) and caters for a formal process to waive mandatory conditions that would otherwise apply to a specified class of visa.

20. The imposition of condition 8503 in a subclass 679 visa is one that arises from the power under ss.41(1) to impose mandatory conditions and, unless waived by the Respondent under ss.41(2A), will apply to such visas whether or not the condition appears on the visa record or any affixed labels. As long as there is a clear identification of the type of visa being granted, the regulations identify the mandatory conditions that apply, and any discretionary conditions are to be spelt out.

21. The other contention of the Applicant, put in the alternative, was that should condition 8503 have been mandatorily imposed and was valid when the visa was granted, the cancellation of the visa label at the Melbourne Airport by the immigration officer and the issue of a new visa label, amounts to a waiver of the condition under ss.41(2A) of the Act which provides:

"(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)."

22. The issue of the new label, it was contended, satisfied the requirement that the Minister waived the condition in writing. Regulation 2.05(4) of the regulations prescribes the circumstances that a waiver can be effected in the following terms:

"(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) ...

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

23. The Applicant argued that the elements of sub reg.2.05(4)(a) were satisfied because the dilemma the Applicant found himself in at the airport was one he had no control over, would result in a major change in his circumstances if he was not allowed into the country and one where compelling and compassionate circumstances had developed.

I do not accept that the obvious administrative error arising from the discrepancy in the numbers of the passport, and the circumstances the Applicant consequently experienced, brief and readily remedied as they were, satisfy most of those elements. Be that as it may, there is no question that the Applicant did not satisfy sub reg.2.05(4)(c).

The Applicant's contention is this regard is untenable.

Conclusion

24. Condition 8503 is a valid condition applying to the subject subclass 679 visa under which the Applicant entered Australia. It had not been waived prior to the Applicant lodging his application for the spouse visa, which is a substantive visa. It follows, therefore, that his application for the spouse visa is prohibited and invalid. The decision of the Respondent's delegate to refuse to consider the application was correct and was not made in error. Accordingly, the application for review, as amended by leave of the Court, should be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Associate:

Date: 26 November 2004
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