FEDERAL COURT OF AUSTRALIA

Muli v Minister for Immigration & Multicultural Affairs [1999] FCA 1155

ADMINISTRATIVE LAW               )

MIGRATION                                    ) – application to review decision of IRT – visa applied for out of time so as to deprive IRT of any discretion – discussion of Minister’s discretion under s 351 – effect of Convention on the Rights of the Child – discussion of appropriate costs order where decision gravely affecting the applicant and also an Australian child and another Australian citizen was reasonably but unsuccessfully taken on review – no order as to costs.

Migration Act 1958 (Cwth), s 351

Sikahele v Minister for Immigration and Multicultural Affairs (Lindgren J, unreported, 10 November 1998) followed

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 referred to

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 referred to

Ahnee v Director of Public Prosecutions [1999] 2 WLR 1305 followed

Shelton v Repatriation Commission (1999) 85 FCR 587 followed

Nouredine v Minister for Immigration and Multicultural Affairs [1999] FCA 1130 followed

KELELA MULI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 591 of 1999

Burchett J

19 August 1999

Sydney

THE COURT ORDERS THAT:

(1)        The application be dismissed.

(2)        There be no order as to costs.

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

EX TEMPORE REASONS FOR JUDGMENT

1                     The applicant, in this application to review a decision of the Immigration Review Tribunal, was born in Tonga.  She arrived in Australia, at the age of 19, in 1988.  Her visa expired on 25 December 1988, and was not renewed.  She has lived in Australia since then, and has entered into a de facto relationship of man and wife with an Australian citizen, which is said to be on a permanent basis, and has resulted in her bearing him a child on 23 September 1998.  The child, of course, is an Australian citizen.

2                     A visa was applied for on 29 October 1998, but was refused, and that refusal has been confirmed by the Immigration Review Tribunal in reliance on the authority of the unreported decision of Lindgren J, given on 10 November 1998, in Sikahele v Minister for Immigration and Multicultural Affairs.

3                     Like Justice Lindgren, I am unable to see any error of law in the Tribunal's decision.  It had no discretion because the application for the visa was lodged out of time.  I note that Lindgren J drew the attention of those persons having the responsibility of advising the Minister to the provisions of s 351 of the Act.  I do likewise.

4                     This is a matter involving the welfare of two innocent Australian citizens, the child and his father, and the obligations of Australia, in the conduct of its external affairs, pursuant to an international covenant into which it has entered, the United Nations Convention on the Rights of the Child.  There is no suggestion here of any discretionary impediment particularly applicable to the present facts, that is, unless it be thought that no exception should ever be permitted to the strict operation of the Act in matters of this kind, a view Parliament does not appear to have accepted, if regard be had to the provisions of s 351.

5                     Whether by virtue of the Convention, or (as Gaudron J held in Minister for Immigration and Ethnic Affairs v Teoh, (1995) 183 CLR 273 at 304 – 305) by virtue of what her Honour called “the duty of kings” which has devolved upon modern governments, those advising the Minister will be bound to treat the best interests of the child as a primary consideration, unless the applicant is first given an adequate opportunity to present the reasons why they should not depart from that course:  Teoh;  Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 612 - 613.

6                     Notwithstanding these considerations, the Act commits the decision to the absolute discretion of the Minister.  The Court's task is to analyse the circumstances, which in this case reveal no satisfactory legal remedy, and in that process to expose for the Minister's consideration a situation he may think calls for a decision under s 351.

7                     The remaining issue is costs.  Few administrative decisions of governments affect so deeply the lives of individuals as do decisions regarding migrants.  Particularly is this so where those decisions also affect spouses and children of migrants.  If those spouses and children are Australian citizens, Australia has a special interest in ensuring a decision is just.  That interest is also touched by an obligation under international law in the case of a child.  For all these reasons, the Australian government as well as the migrant had an interest in the provision of a reasonable right of appeal to the applicant to ensure the full examination of the decision in this instance.  Indeed, s 351 may not operate satisfactorily if the technical position in a given matter is not first adequately explored.  It follows that the health of the administration of immigration into Australia, quite apart from the justice of individual cases, will be best served if applications such as the present are not too greatly deterred by the risk of costs orders. 

8                     These propositions are supported by the Privy Council in Ahnee v Director of Public Prosecutions [1999] 2 WLR 1305 at 1315, and by the Full Court of this Court in Shelton v Repatriation Commission (1999) 85 FCR 587 at 590.  See also Nouredine v Minister for Immigration and Multicultural Affairs [1999] FCA 1130 at paragraph 16.  The importance to the health of the executive itself of an available means of review of its decisions is recognised, not only in the common law countries, but also in Europe:  Guy Braibant, LE DROIT ADMINISTRATIF FRANÇAIS (2^nd edition, 1988) 413.

9                     In the present case, an unrepresented migrant was properly informed that she had a right of appeal which could only be exercised within a limited time.  She acted reasonably in lodging her appeal, which of course concerned not only her own interests, but also those of the child, and then seeking advice.  Her access to advice was limited by lack of means.  In the circumstances, the application is dismissed, but I make no order as to costs.

Associate:

Dated:                        19 August 1999