FEDERAL COURT OF AUSTRALIA

Fakatava v Minister for Immigration & Multicultural Affairs [1999] FCA 1477

MIGRATION - Review of a decision from the Immigration Review Tribunal to not grant a Change in Circumstances (Residence) (Class AG) Subclass 806 (Family) Visa - whether there is any discretion exercisable in relation to Schedule 3, clause 3002 the “12 months rule” of the Migration Regulations - the effect, if any, of children born in Australia.

Migration Act 1958 (Cth) ss 31(3), 45, 65(1), 347, 349(2)(c), 351, 381, 476, 481, 486

Migration Regulations 806.212

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3(4)(a)(i), 18A

Sikahele v Minister for Immigration and Multicultural Affairs [1998] FCA 1453 Appl

Holani v Minister for Immigration and Multicultural Affairs [1999] FCA 484 Cited;  on appeal [1999] FCA 707 Foll

Capistrano v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 154 Cons

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Ex

Re East;  Ex parte Nguyen (1998) 159 ALR 108 Foll

TAUFA FAKATAVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL

AFFAIRS

NO N450 OF 1999

COOPER J

BRISBANE (HEARD IN SYDNEY)

28 OCTOBER 1999

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs of and incidental to the application to be taxed if not agreed

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 Tongan national.  On 17 October 1997 the applicant applied under the Migration Act 1958 (Cth) (“the Act”) for a Change in Circumstances (Residence) (Class AG) Subclass 806 (Family) Visa.  The basis of her application was a “special need relative” being her two children born in Australia on 4 August 1996 and 4 July 1997 respectively.  The application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 18 June 1998.  The applicant applied on 6 July 1998 under s 347 of the Act for review of that decision by the Immigration Review Tribunal (“the IRT”).  On 27 April 1999 the IRT affirmed the decision under review.

2                     The applicant filed in this Court on 19 May 1999 an application under s 476 of the Act for an order of review of the decision of the IRT.

3                     The relevant background facts are not in dispute.  The applicant arrived in Australia on 23 December 1992 as the holder of a visitor visa which allowed her to remain in the country for three months, until 23 March 1993.  The applicant has not since that time held a substantive visa and thus has not had substantive lawful status to remain in Australia.  The applicant made her application for a Change in Circumstances (Residence) (Class AG) Subclass 806 (Family) Visa in Australia, where she was resident on 17 October 1997.  At the time of making the application more than twelve months had expired since the applicant had had substantive lawful status to stay in Australia.

4                     The delegate and the Tribunal both held that it was a mandatory requirement, as provided in subclause 806.212 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”), that at the time of the application the applicant satisfied Schedule 3 criterion 3002.  They further held that, to satisfy the requirement the applicant was required to make a valid application within twelve months of 23 March 1993.  This, the applicant had not done and therefore could not satisfy one of the mandatory criteria for a Change in Circumstances (Residence) (Class AG) Subclass 806 (Family) Visa.  Accordingly the delegate refused the application and the IRT affirmed the decision of the delegate.

5                     The applicant seeks review of the decision of the IRT on the following grounds :

“1.       The applicant was refused a visa by the delegate on the basis of clause 3002 ‘12 months rule’ involved an error of law.

2.         The Principal Member refused a request from the applicant to refer the decision to Administrative Appeals Tribunal under s 381 involved an error of law.

3.         Procedures required by the Migration Act and Regulations were not observed.

4.         The decision was induced by fraud or actual bias.

5.         The delegate failed to give a proper genuine and realistic consideration to the interests of Australian citizen children and the effect of children citizenship.

6.         The applicant was denied access to a scheme relating to unlawful non-citizens which the respondent had granted 2705 offshores applicants with bridging visas to remain in Australia during 1995 and 1996 calendar years while the visa application was processed overseas in breach of clause 3002 ‘12 months rule’.

7.         The respondent failed to follow its own policy in accordance with Migration Series Instruction MSI No 121 relating to clause 3001 and 3002 effective 8 September 1995 and prodiced [sic] by L Budgen, A/g First Assistant Secretary Policy and Development Program Division involved breached of duty, fraud and improper use of power see paragraph 6 above.

8.         Clause 3002 was amended by Statutory Rules 268 of 1995 effective from 1 November 1995 was a positive step taken by the Government to victimise Australian citizen children in breach of UN Convention on the rights of the child.

9.         The Tribunal has a discretion under section 349(2) of the Act to refer the decision to the minister for reconsideration.

10.       It is unconstitutional for the Government to enact retrospective laws which has the effect of uprooting Australian citizen children and deny them of the country of their own as well as the loss of their homeland etc.

11.       Consideration of Teoh’s case - the law as established by the High Court.

12.       UN Convention on the rights of the child.

13.       UN Declaration on the rights of the child.”

6                     When the application was called on for hearing, leave was given to Mr L Fonua to act on the hearing of the application on behalf of the applicant.  Mr Fonua is not legally qualified.  He is a member of the Tongan community in Sydney and has provided assistance to the applicant in making her visa application and in the proceedings before the IRT.

7                     At the outset of the hearing an application was made to transfer the proceeding to the Family Court of Australia.  It was submitted that the power to order the transfer was contained in s 18A(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).  That section relates to a proceeding under the ADJR Act.  The present proceeding is not brought under the ADJR Act;  it is a proceeding brought under s 476(1) of the Act on one or more of the grounds specified in paragraphs (a) to (g) inclusive of that subsection in respect of a decision falling within s 475(1)(a) of the Act.  The jurisdiction of this Court is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court of Australia under s 75 of the Constitution:  s 486.  The powers of this Court on an application under the Act for review of a judicially-reviewable decision do not include a power to transfer the proceeding to the Family Court of Australia:  s 481.  The application for transfer is refused.

8                     I turn to the grounds relied upon in the application for judicial review.

9                     Ground 1:  On 17 October 1997, s 45(1) of the Act required the applicant as a non-citizen of Australia to apply for a visa of a particular class.  The classes of visa are set out under item numbers in Schedule 1 to the Regulations.  Section 45(2) and s 45(3) of the Act provide for the making of regulations prescribing the way of making an application, and, prescribing where the applicant must be at the time of making that application.  Section 46 of the Act deals with the requirements for a valid application. 

10                  Regulation 2.07 of the Regulations provided as follows :

“2.07(1)          For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:

(a)       the approved form (if any) to be completed by an applicant;

(b)       the fee (if any) payable on an application;

(c)        other matters relating to the application.

(2)       A fee is not payable on an application for a visa if:

(a)       the application is combined with another application in a way permitted by:

(i)        the relevant item in Schedule 1;  or

(ii)       regulation 2.08;  and

(b)       the fee (if any) has been paid on that other application.

(3)        An applicant must complete an approved form in accordance with any directions on it.”

11                  The relevant part of Schedule 1 to the Regulations is item 1107 which deals with Change in Circumstances (Residence) (Class AG) Visas.  Item 1107 in paragraph (1) required that the application be made in Form 887.  In paragraph (3)(a) it required that the application must be made in Australia.  Paragraph (3)(b) required that the applicant must be in Australia.  Paragraph (4) provided for four subclasses of the visa.  Subclass 806 (Family) was the subclass relevant to the matters presently before the Court.  This meant that the provisions relating to the Subclass 806 (Family) in the relevant part of Schedule 2 were relevant to an application for a Change in Circumstances (Residence) (Class AG) Visa:  Regulation 2.02(1) and (2).

12                  The Act, in s 31(3), provided for criteria for a visa or visas of a specified class to be set by regulation.  The relevant Regulations are 2.03(1) and 2.03(2).  They provide :

“2.03(1)          For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa), the prescribed criteria for the grant to a person of a visa of a particular class are:

(a)       the primary criteria set out in a relevant Part of Schedule 2;  or

(b)       if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.

(2)       If a criterion in Schedule 2 refers to a criterion in Schedule 3, 4, or 5 by number, a criterion so referred to must be satisfied by an applicant as if it were set out at length in the first-mentioned criterion.”

13                  The relevant part of Schedule 2, as defined by Regulation 2.02(2), are the provisions applying under the heading “SUBCLASS 806 - FAMILY”.  The criteria to be satisfied at the time of the application were contained in clause 806.21.  Sub-clause 806.212 required that the applicant satisfy Schedule 3 criterion 3002. 

14                  Schedule 3 is entitled “ADDITIONAL CRITERIA APPLICABLE TO UNLAWFUL NON-CITIZENS AND CERTAIN BRIDGING VISA HOLDERS”.  Clause 3002 required that the applicant make a valid application within twelve months after the relevant day (within the meaning of sub-clause 3001(2) of Schedule 3).  The applicable provision in sub-clause 3001(2) is paragraph (b).  In accordance with that paragraph the relevant day is the day when the applicant last became an illegal entrant.  In the case of the present applicant that was 23 March 1993.  The applicant was required to make an application for a Change in Circumstances (Residence) (Class AG) Subclass 806 (Family) Visa by 23 March 1994.

15                  The appellant could not satisfy criteria 3002 on 17 October 1997.

16                  The decision of the Minister to grant or refuse a visa is controlled by s 65(1) of the Act which provides :

“65(1)After considering a valid application for a visa, the Minister:

(a)       if satisfied that:

(i)        the health criteria for it (if any) have been satisfied;  and

(ii)       the other criteria for it prescribed by this Act or the regulations have been satisfied;  and

(iii)      the grant of the visa is not prevented by section 40 (circumstances when granted), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth;  and

(iv)      any English Education Charge under the Immigration (Education) Charge Act 1992 and any charge under the Migration (Health Services) Charge Act 1991 payable in relation to the application have been paid;

            is to grant the visa;  or

(b)       if not so satisfied, is to refuse to grant the visa.”

17                  The failure of the applicant to satisfy Schedule 3 criterion 3002 means that the Minister, in terms of s 65(1)(a)(ii), cannot be satisfied that the criteria prescribed by the Regulations have been satisfied.  In that circumstance, s 65(1)(b) requires the Minister (or the delegate of the Minister) to refuse to grant the visa.  The provisions of s 65(1) are mandatory and there is no discretion in the Minister or the delegate to waive compliance with the criteria in Schedule 3 criterion 3002 when application is made for a Change in Circumstances (Residence) (Class AG) Subclass 806 (Family) Visa;  nor did the IRT, upon a review of the decision of the delegate, have a discretion to waive compliance with Schedule 3 criterion 3002:  Sikahele v Minister for Immigration and Multicultural Affairs [1998] FCA 1453;  Holani v Minister for Immigration and Multicultural Affairs [1999] FCA 484;  on appeal [1999] FCA 707.

18                  The IRT made no error of law in applying Schedule 3 criterion 3002 to the circumstances of the applicant.

19                  Ground 2:  Although a request was made to the Principal Member of the Tribunal to refer the decision under review to the Administrative Appeals Tribunal under s 381 of the Act, the Principal Member had a discretion whether or not to make the referral.  Section 381 of the Act provides :

“381(1)           The Principal Member of the Immigration Review Tribunal may, if the Principal Member considers that an IRT-reviewable decision involves an important principle, or issue, of general application, refer the decision to the President of the Administrative Appeals Tribunal.”

20                  The request of the applicant was written and dated 4 December 1998.  It contained thirty-five paragraphs and was nine pages in length.  The request covered the areas the subject of the grounds pleaded in the present application.  The Principal Member refused the request and gave written reasons for her refusal.  So far as presently relevant, the letter of 4 February 1999 said :

“I refer to your letter of 4 December 1998 to the Deputy Registrar of the Tribunal in relation to the [sic] your application for review.

Your application has been referred to me for exercise of my powers under s.381 of the Migration Act.

Having reviewed the records in relation to your application I decline to refer it to the President of the Administrative Appeals Tribunal under s.381 of the Migration Act.  I do not consider that the decision involves an important principle, or issue, of general application as would justify such a referral.

Implicit in your request is an assumption that this Tribunal is unable or unwilling to consider or apply the decision of the High Court in Teoh v Minister for Immigration & Ethnic Affairs (1995) 128 ALR 353 or the United Nations Convention on the Rights of the Child.  In fact this decision and convention have been referred to the Tribunal and considered by it in a number of applications for review.  The law is as follows.

In Teoh v Minister for Immigration and Ethnic Affairs (1995) 128 ALR 353 the High Court considered Article 3 of the United Nation Convention on the Rights of the Child (UNCROC).  It held that entry by Australia into a treaty could give rise to a legitimate expectation that government decision-makers would make decisions consistently with Australia’s obligations under the treaty.  Article 3 provides that the interests of the child shall be of primary consideration when administrative decision-makers are exercising their discretion.

In Maliana Sikahele v Minister for Immigration & Multicultural Affairs [1998] 1453 FCA (10 November 1998) Lindgren J said:  It is one thing to say that a decision maker must take into account the Convention when the decision maker is exercising a discretion or 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.

Your application for a Class AG visa has been refused by the Department of Immigration & Multicultural Affairs (DIMA) and you have applied for a review by this Tribunal.  I draw to your attention that in the only subclass for which you appear to be making claims, Subclass 806, DIMA found you failed to satisfy the criterion specified in paragraph 806.212(a) of Schedule 2 to the Migration Regulations.  This is the Schedule 3 criterion 3002 ‘12 months rule’, which required you to have applied for the visa within 12 months of last holding a substantive visa.  This criterion has always been regarded as a rule that does not give a decision-maker any discretion (see the Federal Court decision in Sikahele, attached).

The Tribunal can only check whether the delegate or review officer has correctly ascertained the relevant day from which the 12 months run.  The AAT would appear to have no additional powers.  The Tribunal will conduct an independent merits review of your decision.  If it cannot find in your favour the only remedies for you appear to be to ask the Minister to use the powers under sections 345 or 351, to apply for a visa outside Australia or to apply for a visa inside Australia which does not have clause 3002 as a criterion.”

21                  The applicant has not shown how the exercise of the discretion of the Principal Member miscarried in any way having regard to the reasons given for the refusal. 

22                  Grounds 3, 4, 6 and 7:  These grounds relate to what the applicant contends was a scheme operated or permitted by the respondent whereby persons who were unlawful non-citizens in Australia were able to avoid the application of Schedule 3 criterion 3002 to their personal circumstances by applying for a substantive visa overseas.  The allegations of fraud, bad faith and actual bias relate to the circumstances pleaded in grounds 6 and 7.  There is absolutely no evidence of fraud, bad faith or actual bias on the part of the respondent or any delegate of the respondent or on the part of the IRT.  Further, there is no evidence that the procedures required by the Act and the Regulations were not observed in the consideration of the applicant’s application for a substantive visa or were not observed by the IRT in reviewing the decision of the delegate.

23                  The applicant’s complaint is that persons in apparent like circumstances may or may not be granted a visa which carries the right to permanent residence depending upon where the application is lodged.  The reason for such apparently inconsistent and unfair results lies in the classification of certain visas and the structure of the statutory scheme relating to the granting of visas.

24                  Schedule 1 to the Regulations contains the various classes of visa.  It also contains the requirements for making a valid visa application.  Certain visas can only be applied for in Australia by the applicant being present in Australia.  The Change in Circumstances (Residence) (Class AG) Visa is such a visa.  Other visas may only be applied for outside Australia.  The Parent (Migrant) (Class AX) Visa is such a visa.

25                  Schedule 2 of the Regulations contains the criteria applicable to a grant of a visa by reference to the particular subclass.  Thus, while a visa application may be a valid visa application having regard to the requirements of Schedule 1, the applicant may nevertheless be refused a visa because he or she does not satisfy the criteria under Schedule 2.  The relevant subclasses applicable to a Change in Circumstances (Residence) (Class AG) Visa include subclass 806 (Family).  The criteria applicable to subclass 806 include Schedule 3 criteria.

26                  Schedule 3 criteria only applies to applications for visas made in Australia by persons present in Australia.  It does not apply to applications for visas required to be made outside Australia.  This is because the subject matter of the criteria in Schedule 3 is an applicant in Australia for an onshore visa who is an unlawful non-citizen  or a lawful non-citizen who holds a bridging visa but not a substantive visa. 

27                  The purpose of Schedule 3 was identified in the Migration Series Instruction MSI-121 pleaded in paragraph 7 of the grounds of the present application.  That document said :

“2        PURPOSE OF SCHEDULE 3

2.1       The purpose of the Schedule 3 criteria is:

·        to encourage non-citizens who have a legitimate basis for remaining in Australia to apply for a further visa before their current substantive visa expires;

·        to discourage non-citizens from remaining in Australia beyond the period of effect of their substantive visa;  and

·        to prevent non-citizens from benefiting by remaining in Australia unlawfully, that is, by acquiring migration eligibility while remaining without permission.

2.2       At the same time, it is recognised that there are situations in which non-citizens remain in Australia without a substantive visa through circumstances over which they have no control, and situations where there are compelling reasons for granting them permission to remain.  The Schedule 3 criteria take account of such circumstances.

2.3       Schedule 3 replaced the Schedule 6 ‘Illegal Entrant Criteria’ in the Migration (1993) Regulations.”

28                  The subclass which applied to a Parent (Migrant) (Class AX) Visa was subclass 103 (Parent).  No Schedule 3 criteria were applicable to an applicant for such a visa.  The reason for this is tolerably clear.  The applicant must be outside Australia when the visa is granted (clause 103.4).  Ordinarily, it would be expected that the applicant was also outside Australia at the time of the application.  In those circumstances the Schedule 3 criteria were both inappropriate and inapplicable.  Because Schedule 1 did not require that the applicant be outside Australia at the time of making an application for a Parent (Migrant) (Class AX) Visa, it was possible for a non-citizen unlawfully in Australia to make such an overseas application.  It remained the case nonetheless that no visa could be granted to that person for so long as the person remained in Australia.  In order to obtain the grant of the visa it was necessary that the person at some point leave Australia.  Of course the person unlawfully in Australia was at all times liable to be detained and deported.

29                  In 1994 bridging visas were introduced.  Such visas are not substantive visas.  They were only designed to provide a non-citizen with lawful status and not to confer any other benefit.  In 1994 there were five classes of such a visa.  The Schedule 1 requirements for a valid application for a bridging visa in 1994 were contained in Part 3 of that Schedule, items 1301, 1302, 1303, 1304 and 1305.  Each class of bridging visa required that the application be made in Australia and that the applicant be in Australia at the time the application was made.  Bridging A (Class WA) and Bridging C (Class WC) Visas required that the applicant had made a valid application for a substantive visa that had not been finally determined.  There was no requirement that the substantive visa application be one that was made in Australia.  Accordingly, persons who made applications overseas could, if they satisfied the Schedule 2 criteria for the particular bridging visa, obtain lawful status and remain in Australia while the application for the substantive visa was being processed and until a final determination was made on the application.  The criteria in the relevant Schedule 2 subclasses did not require that the substantive application be lodged in Australia and did not apply Schedule 3 criteria to the grant of a bridging visa.

30                  The respondent submitted that the situation whereby unlawful non-citizens in Australia could obtain a bridging visa in respect of a pending application for a substantive visa made overseas, was an unintended anomaly.  That anomaly was rectified by the Migration Regulations (Amendment) 1996 (Cth).  Those amendments were made with respect to the Schedule 1 requirements for a valid visa application.  They required that the applicant had made a valid application in Australia for a substantive visa that could be granted if the applicant was in Australia and that application had not been finally determined.

31                  A challenge was made to the validity of the amendments.  It was contended that what was prescribed was not a way for the making of an application and could not therefore properly be the subject of Schedule 1 to the Act.  Emmett J, in Capistrano v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 154 concluded (at 159) :

“While the language of the Regulations as altered may not be felicitous, the effect of the Amendment is that there are now additional circumstances prescribed which must prevail before there is an obligation on the Minister to grant a visa.  Alternatively, there are additional criteria which must be satisfied before there is an obligation on the Minister to grant a visa.  An alteration to the Regulations which has either of those effects would be a valid alteration.  It follows that the Amendment is valid.”

32                  On 1 November 1997 amendments were made to the Schedule 2 criteria applicable to bridging visas.  The effect of the amendments was to remove the requirement that the substantive application for a visa was limited to one which could be granted if the applicant was in Australia from Schedule 1 and to insert the same requirement into the relevant subclass in Schedule 2 relating to bridging visas.

33                  The effect of the 1996 amendments was to deny access to unlawful non-citizens to bridging visas to give them lawful status while an overseas application was being processed.  The 1997 amendments merely made clear that the requirement was intended to operate as a Schedule 2 requirement only.  Thus, although a valid application for a bridging visa could be made whether or not the application for a substantive visa was made in Australia or overseas, the applicant would not satisfy the criteria for the grant of the bridging visa unless the application was for a visa which could only be granted in Australia.

34                  The amendment in 1996 only operated to deny the applicant the opportunity to obtain a bridging visa if she made application overseas for a Parent (Migrant) (Class AX) Visa.  It did not prevent her making an application overseas for such a visa to which Schedule 3 criterion 3002 did not apply.  The difference was that she could not lawfully remain in Australia while such an application was determined.  If she failed to leave Australia while the application was being processed, she risked detention and deportation.  The change in 1996 to remove the anomaly was to ensure that the policy identified in Migration Series Instruction MSI-121 was made effective by ensuring that unlawful non-citizens in Australia made timely applications for resident visas of the type which could be issued to them in Australia.

35                  There is nothing to support the assertions contained in Grounds 3, 4, 6 and 7. 

36                  Ground 5:  The Act and Regulations did not vest in the respondent or the IRT the discretion to waive compliance with Schedule 3 criterion 3002 where the applicant had children who were Australian citizens and because of their age were dependent on the applicant.  It was submitted that there was such a discretion because the children would be denied the benefits of that citizenship, if required by practical necessity to leave Australia with the parent. 

37                  The circumstances of the children are recognised in the Act and Regulations by providing for a class of visa which recognises both their Australian citizenship and their dependence.  Proof of the citizenship and the needs of the child go to a requirement of the Regulations, namely satisfying the criteria in clause 806.211(d) in the Second Schedule, and not to found a discretion to waive a mandatory requirement.  A submission to similar effect as the one now made on behalf of the applicant was rejected by Madgwick J in Holani and confirmed by the Full Court on appeal.

38                  Grounds 8, 11, 12 and 13:  At the outset it must be said that the amendment of clause 3002 of the Third Schedule to the Regulations by Statutory Rules 268 of 1995 effective from 1 November 1995 was to remedy a legislative oversight which failed to include within the class of applicant to whom Schedule 3 criterion 3002 applied persons other than those who ceased to hold a substantive visa prior to 1 September 1994.  For example, an applicant whose entry permit expired prior to 1 September 1994 had been excluded from criteria 3002:  see MSI-121 Attachment A paragraphs 1 - 3, 5 - 10.  There is no substance in the allegation made in Ground 8 as to the purpose for which the amendments were made.

39                  The balance of the issues raised by these grounds allege breaches of United Nations Conventions or Declarations on the rights of the child, and, the application of the decision of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 to the circumstances of this case.

40                  In Sikahele, Lindgren J said (at 4 - 5) :

“On behalf of Ms Sikahele it was submitted that the United Nations Convention of the Rights of the Child, which was ratified by the Commonwealth Executive in 1990 and entered into force for Australia on 16 January 1991, somehow overcame the operation of the provisions of the Act and the Regulations to which I have referred.  Ms Sikalele [sic] referred, in particular, to article 3(1) which provides :

            ‘1.        In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

I do not accept the submission.  It is one thing to say that a decision maker must take into account the Convention when 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;  cf Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-7 (Mason CJ and Deane J), 298 (Toohey J) and cases there cited.”

41                  The submission was also made in Holani and rejected by Madgwick J at pages 2-3.  The Full Court (Einfeld, Finn and Emmett JJ) affirmed that decision.

42                  Additionally, the decision in Teoh does not alter the law in Australia that the entry into a treaty by Australia does not create enforceable rights and obligations under Australian municipal law:  Teoh at 186 - 187, 198;  Re East;  Ex parte Nguyen (1998) 159 ALR 108 at 113, 128.  The decision in Teoh goes no further than to hold that where there is room for the exercise of a discretionary judgment there may be a legitimate expectation that the government decisionmaker will exercise the discretion consistently with Australia’s treaty obligations.  It does not permit decisionmakers to use treaty provisions to make decisions which are contrary to the requirements of Australia’s municipal law.

43                  For the above reasons the matters raised in Grounds 8, 10, 12 and 13 do not make out a reviewable error.

44                  Ground 9:  The materials relied upon do not show that the decision before the IRT related to a prescribed matter, nor that it was in the circumstances appropriate to remit the matter for reconsideration under s 349(2)(c) of the Act.

45                  Ground 10:  In my view this ground raises no issue of the constitutional power of the Commonwealth.

46                  There is no law identified by the applicant which retrospectively operates to revoke or restrict the rights of any child flowing from that child’s Australian citizenship.

47                  Schedule 3 criterion 3002 has no relevant application to the citizenship rights of any child who is an Australian citizen.  In order to overcome this difficulty it was submitted that its operation on the child’s parent had the effect of depriving the child of its citizenship rights and that was unconstitutional.  It was further submitted that the child had a right under s 3(4)(a)(i) of the ADJR Act to have the decision set aside as a person aggrieved by the decision because the child’s interests were adversely affected by the decision.

48                  There was no argument advanced that it was beyond the constitutional power of the Commonwealth to enact by regulation, criteria which require persons, who are unlawful non-citizens in Australia, to make any application for a visa within a specified time.  In my view, that the power exists is beyond any serious question.

49                  Although the practical effect of the application of Schedule 3 criterion 3002 to the parent of a child who has Australian citizenship rights may be to diminish or interfere with the practical enjoyment of those rights for a period of time, the legal content of those rights remains unaffected.  Section 3(4)(a)(i) of the ADJR Act does not guarantee that decisions will not be made which have the practical consequence that a child may be adversely affected in the enjoyment of citizenship rights by an administrative decision.  The section merely gives to a person adversely affected the standing to apply for administrative review of the decision if it is a reviewable decision under the ADJR Act.

50                  There is, in my view, no ground of constitutional invalidity raised by Ground 10.

Conclusion

51                  The issue which has generated considerable emotion in this case, and in a number of others coming before the Court, is why the interests of the child are a relevant consideration where an applicant’s criminal conduct or want of good character is in issue under s 200 or s 501 of the Act, and not a relevant consideration in the present case where there is no suggestion that the applicant is other than a person of good character.  Although the legal basis may be identified without difficulty, the rationality or fairness of such a result will, I fear, never be understood and accepted by the applicant or by others placed in like circumstances.

52                  There are no grounds of reviewable error made out by the applicant.  As Lindgren J indicated in Sikahele, the only course now open to the applicant is to apply to the Minister under s 351(1) of the Act to make a more favourable decision to the applicant than that made by the IRT and to substitute that decision for the decision of the IRT under s 349.

53                  The application must be dismissed with costs.

Associate:

Dated:              28 October 1999