Aguilar v Minister for Immigration & Multicultural Affairs

[1999] FCA 1362

FEDERAL COURT OF AUSTRALIA

Aguilar v Minister for Immigration & Multicultural Affairs [1999] FCA 1362

No question of principle.

MANOLITO AGUILAR v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 594 of 1999

HILL J
24 SEPTEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 594 OF 1999

BETWEEN:	MANOLITO AGUILAR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	HILL J
DATE OF ORDER:	24 SEPTEMBER 1999
WHERE MADE:	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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 594 OF 1999

BETWEEN:	MANOLITO AGUILAR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	HILL J
DATE:	24 SEPTEMBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant, Mr Aguilar, applies to the Court for judicial review of a decision of the Immigration Review Tribunal which affirmed a decision of the respondent Minister or his delegate refusing to grant to him a Change in Circumstance (Residence) (Class AG) visa.  The applicant has not appeared.  After the application was filed a directions hearing was held on 2 August 1999 at which the applicant appeared.  He advised the Court that a solicitor, Ms Oag, was acting for him in the proceedings.

2. On that day I made a number of orders including listing the matter for hearing this morning.  Because the solicitor was not present I reserved to the applicant the right to have the matter relisted on some other date on the basis that such an application had to be made before 6 August 1999.  I requested the Australian Government Solicitor to contact the solicitor and advise her of the orders that I made.

3. In an affidavit filed in Court this morning Mr Pearson affirms that on 4 August he wrote to the solicitor advising of the orders.  Mr Pearson also affirms that on 7 September 1999 he wrote to the applicant reminding him that the hearing would be today.  On 23 September 1999 he received a telephone call from the applicant’s sister, who indicated that she had spoken with the solicitor and barrister, but that they were unable to appear today.  It appears that she only did that on the day of the conversation.  My associate also called the applicant yesterday and advised him that the hearing would take place today.

4. My concern this morning, when it was clear that the applicant was not present, was that he may have been delayed by the train strike which at the moment has made transportation in the city difficult.  I accordingly adjourned the proceedings this morning to have my associate endeavour to contact the applicant at home to see whether he was there and not proposing to attend, or was on his way to Court.  My associate was advised that the applicant was not there but the person with whom she spoke did not know whether or not he was on his way to Court.

5. The application which the applicant filed merely indicates that the decision involved an error of law. It does not endeavour to particularise what that error was. When one reads the Tribunal's decision, it is difficult to see any error of law in it. The basic claim of the applicant was that he was entitled to the Change in Circumstance (Residence) (Class AG) visa, because he satisfied the criterion in clause 3002 of Schedule 3 to the Migration Regulations 1994 applicable by way of clause 806.212 of Schedule 2.

6. However, to satisfy the criteria it was necessary that he apply within twelve months of the expiry of the last substantive visa which he had held.  In fact the applicant arrived in Australia on a visitor's visa on 4 February 1994 which expired on 4 March 1994.  It was not suggested by him that he had any further substantive visa.  His application for the Change in Circumstance (Residence) (Class AG) visa was lodged by him on 30 November 1998, some four years after the expiry of the visitor's visa.

7. The Tribunal held, following decisions of single judges of this Court in Suk Hong Yoon v Minister for Immigration and Multicultural Affairs (1998) FCA 93 and Sikahele v Minister for Immigration and Multicultural Affairs (1998) FCA 1453, that it had no discretion to waive the criterion and in consequence, no alternative but to affirm the decision under review, which it did.

8. Before the Minister’s delegate the applicant also apparently relied on other subclasses of the Class AG visa, namely 802 and 833, but the criteria relevant to these were clearly not satisfied by the applicant on any view of the matter.  It follows that there is no error of law in the Tribunal's decision and that I would have no alternative in any event, but to dismiss the application.

9. In case the applicant may perhaps, however, be caught up in the train strike I propose to stay the orders which I propose to make dismissing the application, for a period of seven days to permit the applicant to make such application as he may wish to make should he really have failed to turn up because of the train strike.

10. I would accordingly dismiss the application and order the applicant to pay the Minister's costs.  I stay the orders I have made for a period of seven days to enable the applicant, if desired, to have the matter relisted.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             24 September 1999

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 September 1999
Date of Judgment:	24 September 1999