Al Chaar v Minister for Immigration and Multicultural Affairs

[2000] FCA 941

FEDERAL COURT OF AUSTRALIA

Al Chaar v Minister for Immigration and Multicultural Affairs [2000] FCA 941

MIGRATION – failure to apply for a visa within the time prescribed by the Migration Regulations – whether the applicant must fail in his application for the visa – whether estoppel can apply in respect of the non-compliance with the Regulations

Migration Act 1958 (Cth)

Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 – referred to
Minister for Immigration and Multicultural Affairs v Polat (1995) 57 FCR 98 – referred to
B v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120 – referred to

AL CHAAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 250 OF 1999

JUDGE:         MERKEL J
PLACE:         MELBOURNE
DATE:           11 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 250 OF 1999

BETWEEN:	FADI KAMAL AL CHAAR APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	11 JULY 2000
WHERE MADE:	MELBOURNE

The Court orders that the application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 250 OF 1999

BETWEEN:	FADI KAMAL AL CHAAR APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	11 JULY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant has applied for a review of a decision of the Immigration Review Tribunal (“the Tribunal”) dated 30 April 1999.  The decision of the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse the grant of a Change in Circumstance (Residence) (Class AG) Visa (“Change in Circumstance visa”) to the applicant.  The Change in Circumstance visa was sought by the applicant on the basis that he was a “special need relative” in relation to his aunt, who is an Australian citizen.

2. A number of grounds were relied upon by the applicant. However, it was common ground that the applicant must fail in his review unless he can establish that the Tribunal erred in concluding that the applicant was unable to satisfy the prescribed criterion for the Change in Circumstance visa sought by him, being that the application for that visa be made within 12 months after the applicant ceased to hold a “substantive visa” as defined in s 5 of the Migration Act 1958 (Cth).

3. The relevant facts concerning whether the applicant satisfied that criterion can be briefly stated. It is common ground that the last date upon which the applicant held a substantive visa, as defined in s 5, was 26 June 1996. On that date the applicant’s tourist visa expired. The relevant subclass of the Change in Circumstance visa applicable to the applicant was Subclass 806 (Family) Visa. Subregulation 806.212(a) required the applicant to satisfy Schedule 3, Criterion 3002. Criterion 3002 required an application for the visa to be validly made within 12 months after the relevant day within the meaning of subclause 3001(2). Satisfaction of that prescribed criterion is a pre-condition to the grant of the visa sought by the applicant. Pursuant to subclause 3001(2), the relevant day in relation to an applicant, who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, is the last day when the applicant held a substantive or criminal justice visa. Accordingly, for the applicant to be entitled to the Change of Circumstance visa for which he applied, he must have made an application for that visa on or before 26 June 1997. His application for the visa was not made until 7 August 1998.

4. The Tribunal found that, as the applicant had not made his application within the prescribed period, the application must fail.  It is plain that the Tribunal did not err in law nor did it commit any other reviewable error in arriving at that conclusion.

5. The applicant claimed that the application for the visa he sought was “delayed” because he had not been given “appropriate information” by the Department of Immigration and Multicultural Affairs (“the Department”).  In that regard the applicant relied on a conversation between his representative, Mr Abbouche, and the Department.  Mr Abbouche told the Tribunal that, some time after the application of the applicant for a Protection Visa had been refused in January 1997, he telephoned the Department on behalf of the applicant and asked if there was any further action the applicant could take to obtain a visa.  Mr Abbouche told the Tribunal that he did not know to whom he had spoken but that he was told there was nothing more the applicant could do.  He said that he and the applicant accepted the advice at face value and that was the reason why the applicant’s application for a Change in Circumstance visa was not lodged until 7 August 1998.

6. Even if the Tribunal had accepted the applicant’s explanation for his delay it would not assist him as his failure to comply with the prescribed criterion rendered him ineligible to obtain the visa he was seeking.  It is well established that an estoppel will not operate so as to relieve against non-compliance with a requirement that the statute intends shall be satisfied: see Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 392, Minister for Immigration and Multicultural Affairs v Polat (1995) 57 FCR 98 at 104-107 and B v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120 at 131-132.

7. As explained above, I accept that the prescribed criterion was a requirement that the Regulations intended to be satisfied as a pre-condition to the grant of the Change in Circumstance visa sought by the applicant.  Thus, there is no room for the operation of an estoppel even if the factual requirements for an estoppel had been made out.

8. In any event, had the Tribunal accepted the evidence of Mr Abbouche at face value, which it appeared not to do, I doubt that it could have afforded a proper basis for an estoppel.  Mr Abbouche did not appear to inform the Department of the applicant’s particular circumstances that were said to entitle him to a Change in Circumstance visa.  In the absence of those circumstances being specifically raised, I doubt that the general information alleged to have been given by the Department in response to a general question could found an estoppel.  However, I need not pursue that question further as Mr Abbouche’s evidence does not appear to have been accepted and, in any event, I am satisfied that, as a matter of law, the estoppel argument cannot succeed.

9. Accordingly, for the above reasons, the applicant must fail in his application for review of the decision of the Tribunal with the consequence that the application is to be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:             11 July 2000

Counsel for the Applicant:	Mr J Carney
Counsel for the Respondent:	Ms M Kennedy
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 July 2000
Date of Judgment:	11 July 2000