FEDERAL COURT OF AUSTRALIA

Elika v Minister for Immigration and Multicultural Affairs

[1999] FCA 1317

SIPILIANO ELIKA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 535 OF 1999

LEHANE J

13 SEPTEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs.

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

EX TEMPORE REASONS FOR JUDGMENT

1                     This is an application to review a decision of the Immigration Review Tribunal by which the Tribunal, on 12 May 1999, affirmed a decision to refuse the applicant a Change in Circumstances (Residence) sub-class 806 (Family) visa.  The reason for the Tribunal's decision was that the application for the visa was not valid, not having been made within the period of one year after the expiry of the last substantive visa held by the applicant.  The circumstances are in relevant respects the same as those considered by Lindgren J in Sikahele v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Lindgren J, 10 November 1998, unreported) and of Burchett J in Muli v Minister for Immigration and Multicultural Affairs [1999] FCA 1155.  The short point is that as the application had not been made within time, it was the duty of the delegate to refuse it, there being in this respect no element of discretion.  The applicant properly concedes that the same result must follow in this case and that the application must be dismissed; and I shall so order.  The only matter of contention is the question of costs. 

2                     In the more recent of the two cases which I mentioned Burchett J made no order as to costs. He did so on the basis that in that 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 concerned not only her own interests but those of her child; and her access to advice was limited by lack of means.  On the other hand in Sikahele, Lindgren J ordered that the applicant, in similar circumstances, pay the Minister's costs.

3                     It is true, I think, that ordinarily the Court will order payment of the Minister’s costs in circumstances where an application is persisted in which plainly must fail.  This was, I think, quite clearly such a case.  The two decisions to which I have referred are indistinguishable and it was inescapable that precisely the same result would follow here.  The application might have been withdrawn at an earlier stage when the applicant had had an opportunity, with the assistance of Mr Fonua who by leave appeared for him today, to consider the implications of the earlier decisions, particularly that of Lindgren J.  Instead, however, the applicant persisted until the commencement of the hearing and only then accepted the inevitable: and in circumstances where it is clearly open to me to infer, as I do, that the inevitable should have been apparent to the applicant and his adviser at least some weeks beforehand.  In those circumstances, despite the sympathy one must feel for the applicant, whose financial resources are no doubt very limited, the discretion should, in my view, be exercised in the Minister’s favour.  For those reasons the orders of the Court will be that:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs.

Associate:

Dated:              21 September 1999