FEDERAL COURT OF AUSTRALIA

Fakatava v Minister for Immigration & Multicultural Affairs [1999] FCA 965

No question of principle

FEAOMOEATA FAKATAVA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 576 OF 1999

HELY J

22 SEPTEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Tonga who was born on 19 April 1967.  She entered Australia on a visitor's visa on 23 December 1992.  That visa expired on 23 March 1993.  The applicant has not held any other visa or entry permit since 23 March 1993.

2                     On 21 January 1996 her son was born in Australia.  On 17 October 1997 the applicant applied for a Change of Circumstances (Residence) (Class AG) Visa.  On 20 May 1999 the Immigration Review Tribunal affirmed the decision of the Minister's Delegate not to grant the applicant that visa on the ground that the applicant failed to meet criteria 3002, which required the application to be made within 12 months of the day on which the applicant last became an illegal entrant.

3                     In its reasons for decision the Immigration Review Tribunal said this:

“The applicant does not satisfy a criterion for the grant of a Subclass 806 (Family) visa because she did not lodge her application within the mandatory time limits set out by Clause 3002 of the regulations.  On the evidence before the Tribunal, the applicant last held a substantive visa on 23 March 1993.  She has not held a substantive visa since that date.  She applied for the Change of Circumstances (Residence) (Class AG) visa on 17 October 1997.  Therefore, the application was not lodged within the 12 month period permitted by Clause 3002 of the Regulations.”

4                     The tribunal held that there were no discretionary considerations which entitled it to disregard or set aside, the time limits specified in clause 3002.   That finding is consistent with a number of decisions of this Court to which I will refer in a moment.  It is also consistent with the provisions of s 65(1)(b) of the Migration Act 1958 (“the Act”) which provides that if the Minister is not satisfied that the criteria prescribed by the Act or the regulations have been satisfied, the Minister must, and I emphasise must, refuse to grant the visa.

5                     An application for review of that decision was lodged with this Court.  A review was sought on a number of grounds as specified in the application.  I gave leave to Mr Fonua to appear and to represent the applicant.  He did not contend, nor does the application for review assert, that the Tribunal should have found that the applicant satisfied the criteria for any other subclasses in the relevant visa category and the proceedings in this Court were confined to a consideration of subclass 806 (Family).

6                     Mr Fonua did not put submissions in support of all of the grounds for review as specified in the application.  He confined himself to three matters and I think that he was wise to confine himself in that way, because whilst he has not referred to other grounds in the application, I have given consideration to them and am satisfied that they are without substance.  What I propose to do is to deal with the three matters upon which Mr Fonua relied.

7                     The first was that the applicant was denied access to a scheme relating to unlawful non citizens, in which the respondent and his Department had granted more than 2,700 offshore applicants with bridging visas to remain in Australia during the 1994 to 1996 calendar years, whilst their residence visa applications were processed overseas.  This submission adverts to an anomaly which existed in the regulations between 1 September 1994 and 1 October 1996 by virtue of which, persons who had made application for a substantive visa offshore, could be granted a bridging visa authorising them to remain in Australia while the offshore application was processed.

8                     That anomaly was removed by amendments to the regulations effective on 1 October 1996 with some further clarification by amendments effected on 1 November 1997.  In my opinion, this supposed anomaly is of no assistance to the applicant in the present case.  Assuming its existence, it does not bear upon the question as to whether in determining the current application, the Tribunal made any error of law and in my opinion, the Tribunal correctly observed that it had no discretion to set aside the mandatory requirements of item 3002.

9                     The circumstances in which persons other than the applicant came to obtain visas cannot assist the applicant and cannot give rise to a legal error on the part of the Tribunal.  A submission similar to the submission put in the present case, was put to Madgwick J in Tuitavake v Minister for Immigration & Multicultural Affairs, unreported, 29 June 1999 and rejected by his Honour and I expressed my agreement with his Honour's conclusion in that respect in Tuitavake v Minister for Immigration & Multicultural Affairs [1999] FCA 590 at par 8.  For these reasons, the first of the matters on which Mr Fonua relies, fails.

10                  The second matter upon which he relied is a submission that the Act and Regulations are made to bend to the United Nations Convention and International Treaties, having regard to the law, as established in Teoh's case.  That submission sought to invoke the Convention on The Rights Of The Child, which came into force in Australia on 16 January 1991, as in some way modifying what would otherwise be the operation of the relevant regulations.  A similar submission was put to Lindgren J in Sikahele v Minister for Immigration & Multicultural Affairs, unreported, 10 November 1998, and rejected by his Honour.  Similarly, that submission was also put to Justice Madgwick in Tuitavake and rejected by his Honour in pars 5 and 6 of that decision.  It was also put to me in my decision in Tuitavake and rejected by me in paragraph 7 of that decision.  For the reasons given in each of those cases, there is simply no substance in the submission.

11                  The third matter put by Mr Fonua is that I should refer the matter to the Minister under s 351 for him to exercise his discretion in this matter.  Section 351(1) provides as follows:

“If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.”

12                  I do not think that this Court has any power to refer the matter to the Minister under s 351.  The powers of this Court derive from s 481.  They are exercisable upon the grounds specified in s 476.  The operation of s 476 is enlivened if some error of the type specified is made by the Tribunal.  In the absence of such an error there is no occasion for the Court to exercise the s 481 powers. 

13                  In my opinion, the Tribunal, in the circumstances of this case, came to the only decision which was open to it in accordance with the law and there is, if only for that reason, no basis for a reference to be made to the Minister under s 351.  Further, the Court simply has no power to direct the Minister in relation to whether and in what manner the Minister exercises his discretion under s 351.  If the applicant wishes to make an application to the Minister under that section that is a matter for her but there is no basis for this Court to proceed under that section.

14                  It follows that as the applicant has failed on all of the matters that were urged on her behalf, the application should be dismissed.  The question of costs thus arises and the applicant relies upon the decision of Burchett J in Muli v Minister for Immigration and Multicultural Affairs [1999] FCA 1155, where his Honour in the circumstances of that case declined to make any order for costs.  His Honour held that the applicant had acted reasonably in lodging her appeal, which concerned not only her own interests but those of her child, and then seeking advice, but her access to advice was limited by a lack of means.

15                  On the other hand, the respondent relies upon the decision of Einfeld J in the matter of Faleafa v Minister for Immigration & Multicultural Affairs [1999] FCA 1091, which was a case that in many respects resembled the present.  Many of the arguments that were put to me were put to Einfeld J, and they failed.  His Honour said this:

“As has been said on other occasions, the Court is in some circumstances reluctant to grant costs against a person who has some arguability about the claim even though it might ultimately fail.  But where a case is being fought on manifestly unavailable arguments, the Minister is perfectly entitled, as it seems to me, to ask for costs and in my opinion the Court should grant them even if they are unlikely to be paid.”

16                  The arguments which were put to me and which I have rejected are similar to the arguments put in Sikahele, to the arguments put in Holani v Minister for Immigration & Multicultural Affairs  [1999] FCA 484; [1999] FCA 707, to the arguments put in Tuitavake, and to the arguments put in Faleafa.  Given their history of lack of success in seeking to disturb the decision of the Tribunal, on grounds such as those that were put forward in the present case, I think that a proper consequence is that the application should be dismissed with costs.

17                  The order of the court therefore is that the application is dismissed with costs.

Associate:

Dated:              22 September 1999