FEDERAL COURT OF AUSTRALIA

Tuitavake v Minister for Immigration & Multicultural Affairs [1999] FCA ###

IMMIGRATION - Application for review of a decision by the Immigration Review Tribunal - Applicant failed to meet criteria in regulations - Whether considerations of the rights of children ought to override an express regulatory provision

Migration Act (Cth) 1958

Convention on the Rights of the Child, 1990

Teoh v Minister of State for Immigration and Ethnic Affairs (1995) 183 CLR 272, distinguished

Holani v Minister for Immigration and Multicultural Affairs [1999] FCA 484, applied

Holani v The Minister for Immigration and Multicultural Affairs [1999] FCA 707, applied

Sikahele v The Minister for Immigration and Multicultural Affairs [1998] FCR 1453, applied

TUITAVAKE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N352/99

MADGWICK J

29 JUNE 1999

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant is to pay the respondent's costs.

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     In this case the applicant is a 39-year-old mother of two infant children born in Australia.  Her de facto husband, and the father of the children, is a New Zealand citizen who has lived in Australia for a long time.  The applicant is a citizen of Tonga who came here on a Visitor visa on 28 October 1992.  She had apparently come here with her then husband, but he returned to Tonga in June 1994, having been deported, and they were subsequently divorced.  The applicant's visa expired on 28 April 1993.  Astonishingly one would think, she has not held a substantive visa or entry permit since that date.

2                     On 2 December 1997 the applicant applied for permanent residency in Australia on the basis that she was a "special need relative."  The application was treated as a "Change in Circumstance (Residence) (Class AG)" visa.  Consistently with item 1107 of Schedule 1 to the regulations made under the Migration Act (Cth) 1958 ("the Act") there were four subclasses within that visa class:  subclass 802 (child); subclass 804 (aged parent); subclass 806 (family), and; subclass 833 (certain unlawful non-citizens).

3                     The application for a visa was rejected by a delegate of the respondent on 27 April 1998 and on 21 May of that year the applicant sought a review of that decision by the Immigration Review Tribunal ("the Tribunal").  On 1 April 1999 the Tribunal refused the application.  The Tribunal noted that the application for the visa required consideration of each of the subclasses though some of them were quite inapposite to the case of the applicant.  No challenge was made to the Tribunal's conclusions that the subclasses of child, aged parent, and certain unlawful non-citizens, for various reasons relating to the applicant's background, could not apply to her.

4                     The possibility that her circumstances might entitle her to a visa was to be found in relation to subclass 806.  The burden of the criteria set by subclass 806 was that a settled Australian citizen, a settled Australian permanent resident, or a settled eligible New Zealand citizen, who is usually resident in Australia, should have a special need for the care of the applicant, being a relative of such a citizen and/or resident.  However, an additional requirement was provided at the relevant time (and still is) by clause 3002 of the regulations.  This clause provides that "the application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2))."  Paragraph (b) of subclause 3001(2), which applied to the applicant, defines the relevant day to be "the day when the applicant last became an illegal entrant".  The applicant last became an illegal entrant on 29 April 1993, and accordingly her application had to be lodged by 29 April 1994.  As it was not so lodged the Tribunal was constrained to refuse the application. 

5                     Two points have been raised by Mr Fonua, a friend of the applicant, who was given leave to assist her and who did assist the court.  The first point is that the decision of Teoh v Minister of State for Immigration and Ethnic Affairs (1995) 183 CLR 273 and Australia's obligations under the United National Convention on the Rights of the Child, 1990 ("the Convention") together with other decisions in relation to that Convention, have had the effect that the sub-regulation which would otherwise debar the applicant from further consideration for a visa is either invalid or must be read so as not to apply to a case such as this where there are infant children whose fate might well be one of great disruption and disadvantage if the applicant should not receive a visa to stay here.

6                     This is not the first case in which desperate people have mistakenly seen a ray of hope extending from Teoh and hopefully shining on them.  I have decided one such case myself, Holani v Minister for Immigration and Multicultural Affairs [1999] FCA 484.  In that case, I said, at paras 8 and 9, that: 

"it was submitted that, in various respects, the welfare of either or both of the applicant's children had not been treated as either the primary consideration or a primary consideration, or as having engendered a legitimate expectation in the applicant that the relevant decision-makers would take the best interest of the child to the or a primary consideration.  Stress was laid on article 3 of the … Convention … which came into force for Australia on 16 January 1991.  Article 3 states that:

'In all actions concerning children, whether they are undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.'

In order that this article might have some relevant application, in this case, it would be necessary to demonstrate that directly or indirectly, the Convention had the effect of invalidating the relevant regulation, namely criterion 3002 of schedule 3.  It's enough to say that this was not shown and nor, in my opinion, could it be shown.  Consequently, there was no scope relevant to the present proceedings, for the application of the standards described by that article and accepted by Australia."

That decision was upheld on appeal in Holani v The Minister for Immigration and Multicultural Affairs [1999] FCA 707.  A similar case was that of Sikahele v The Minister for Immigration and Multicultural Affairs [1998] FCR 1453 decided by Lindgren J.  Lindgren J said:

"On behalf of Ms Sikahele it was submitted that the [Convention] … somehow overcame the operation of the provisions of the Act and the Regulations…  I do not accept the submission.  It is one thing to say that the decision maker must take into account the Convention and the decision maker is exercising a discretion or is attempting to resolve an ambiguity, but it is an altogether different thing, and one contrary to law, to say that a decision maker or court must or may ignore an unambiguous mandatory time constraint imposed by an Act in favour of the Convention."

Lindgren J put the matter aptly, in my respectful view.  It follows that Teoh represented a false hope for this applicant. 

7                     The second point raised by Mr Fonua was one that I confess I did not entirely understand.  The applicant's understanding is that other mothers, who have overstayed their visas illegally, have nonetheless managed to obtain a visa.  In particular, her understanding is that many of them had done so previously, pursuant to some scheme or practice, acknowledged or accepted by the Minister through his Department, whereby visa applicants, such as the present one, have been advised to cause an application for permanent residency to be lodged in a foreign country whereupon those applicants actually being in Australia, were granted a bridging visa while the application lodged abroad was considered to finality.

8                     The applicant's case is that either she was not advised of the scheme, that it is unfair that she would not be able to take advantage of it (if it still exists), or that it would be hypocritical and unfair if it no longer exists and she should have been denied the ability to use it.  There may or may not be something in these claims.  Properly investigated, tracked down, documented and comprehended, they might give rise to some enforceable legal right in the applicant or they might give rise to some powerful discretionary factor in relation to a decision where the Minister or some delegate has a discretion.  However, the consideration of those matters will have to await their formulation by or on behalf of the applicant.  Any such claims ought to be presented in a comprehensible form before an appropriate official or Tribunal at first instance.  I do not say that this matter may not, in other circumstances, be considered in proceedings in this Court.  But those matters are, to say the least, undeveloped and, with great respect to Mr Fonua who has assisted the Court, ultimately presented in an incomprehensible form here.  They cannot affect the matter.  There is no adequate evidence to explain precisely in what way the applicant claims that she has been differentially disadvantaged.

9                     Other matters were raised in the written submissions, including some which should not have been, but the applicant was doing her best, without legal advice and I say no more about that. 

10                  Mr Fonua, with characteristic charm, has not wasted time on a submission about costs.  Accordingly, the application is dismissed and the applicant will be ordered to pay the costs of the application. 

Associate:

Dated:              29 June 1999