Holani v Minister for Immigration and Multicultural Affairs

[1999] FCA 484

FEDERAL COURT OF AUSTRALIA

Holani v Minister for Immigration & Multicultural Affairs [1999] FCA 484

IMMIGRATION - review of decision of Immigration Review Tribunal - Change of Circumstances visa - birth of second child - application made outside twelve months of valid visa - alleged failure to consider whether applicant special need relative - alleged failure to consider the best interests of the child - alleged failure to refer matter to the Administrative Appeals Tribunal - alleged failure to remit to Minister

Convention on the Rights of the Child:  article 3

Migration Act 1958: ss 65(1)(a)(ii), 351, 381, 391, 481

Migration Regulations:  subcls 802, 806, criterion 3002 of Schedule 3

HOLANI V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1095 OF 1998

MADGWICK J

2 FEBRUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1095 OF 1998

BETWEEN:	ONITINA HOLANI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MADGWICK J
DATE OF ORDER:	2 FEBRUARY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for review be dismissed.

2.The applicant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1095 OF 1998

BETWEEN:	ONITINA HOLANI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MADGWICK J
DATE:	2 FEBRUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Immigration Review Tribunal ("the Tribunal").  The Tribunal was itself reviewing a decision of a delegate of the respondent to refuse to grant Ms Holani any sub-class of visa in the class for which she had applied.  The class of visa for which she had applied is referred to under the Migration Regulations ("the Regulations") as the Change of Circumstances (Residence) (Class AG) visa. 

2. The applicant's original application to the Minister was lodged on 8 January 1998 and a decision refusing the application was made by the Minister's delegate on 3 February 1998.  The applicant is a Tongan citizen who arrived in Australia on 22 February 1992 as a visitor.  The expiry date of her last entry permit was 30 June 1992.  She has held no entry permit or relevant visa since that date. 

3. The sub-classes under the Change of Circumstances class of visa for which the applicant applied include, relevantly to the present application, sub-classes 802 and 806.  Sub-class 802 relates to children and 806 relates to families.

4. One of the requirements that needed to be satisfied for the application to succeed, in either of the above sub-classes, was that the applicant satisfy Criterion 3002 of Schedule 3.  Its effect is that an application such as the present must be made within twelve months of the expiry of the last visa held.

5. Much attention was devoted to a supposed change in circumstances on the part of the applicant arising from the birth of her second child on 20 November 1997. However, all that this event does is to indicate that there might possibly be a case for granting the visa, if all other requirements of the Regulations are met, pursuant to s 65(1)(a)(ii) of the Migration Act 1958 ("the Act").

6. Before the Tribunal the applicant claimed that she was a special need relative in relation to either her youngest child or to both of her children.  The Tribunal rejected her application to it for review of the primary decision because criterion 3002, requiring that the application be made within 12 months of the expiry of the last visa held, had not been satisfied.  The Tribunal expressed the view that it had no discretion to waive the strict application of that criterion. 

7. All of that seems to me to be entirely correct.  The applicant's legal representatives made four submissions before me in relation to this finding.  First, it was argued that, no consideration had been given by the delegate or the Tribunal to the applicant's claims in relation to her possible status as a special need relative.  Assuming, despite Huang v The Minister for Immigration and Multicultural Affairs (1976) 71 FCR 95 at 99, that in some circumstances the relationship of special need relative might be constituted by the requirements of a child or children of tender years, no amount of consideration given to such a claim could have overcome the twelve month time limitation to which I have referred.

8. Second, 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 interests of the child to be the or a primary consideration.  Stress was laid on article 3 of the Convention on the Rights of the Child ("the Convention") which came into force for Australia on 16 January 1991.  Article 3 states that:

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

9. 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 is 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.

10. Third, it was argued that the principal Member of the Tribunal, made a procedural error of law in declining to refer the decision to the Administrative Appeals Tribunal ("the AAT") under s 381 of the Act. It was said that the questions about the primacy of the interests of the child had justified this. However, given the clear applicability of the twelve month visa limit and the applicant's failure to satisfy it, this submission seems to me to be fanciful and misplaced. It emerged, in the course of the hearing, that the supposed importance of the refusal to refer the matter to the AAT was that, if the AAT had refused the application for review, then the applicant would be entitled to request that the Minister exercise his powers under s 391 of the Act to make a decision in her favour regardless both of the AAT's decision and of the requirement that the criteria of the regulations, including the 12 month time limit for an application, be made out. Even that seems to have overlooked the proposition that in relation to the primary decision now under review, the Minister may, if persuaded so to do, disregard a finding of the Tribunal, reconsider the matter afresh and find in favour of the applicant under s 351 of the Act. That section enables him to do in relation to disregarding Immigration Review Tribunal decisions, that which he can do in relation to AAT decisions.

11. Finally, it was suggested that there was a case made out on compassionate grounds for the court to remit the case directly to the Minister for reconsideration. Section 481 of the Act contemplates that where further consideration of a matter is, in the view of the court, required, the court may make an order referring the matter "to the person who made the decision for further consideration". However, there is real doubt about whether, at least in ordinary circumstances, the court can remit matters directly to the Minister. There may be exceptional and unusual cases in which this can be done, but in general it cannot. The reference to "the decision" is to the judicially reviewable decision. That is the decision of the Immigration Review Tribunal. Thus, in the ordinary course it is contemplated that the court would refer the matter to that Tribunal and not to the Minister for further consideration.

12. In any event, there is no power in this Court to refer or remit the case to anybody unless the court considers that a proper case for so doing has been made out. This power does not exist at large and appeals to the supposed inhumane quality of decisions, absent demonstrated errors of law, do not provide such grounds. There is no basis at all for me to infer such a power in relation to this matter. If the applicant wishes to try to move the Minister to reconsider the matter under s 351 that will be a matter for her.

13. The bare recitation of these matters may suggest that I have unsympathetically considered this matter in relation to a young mother of two who I am informed, is about to become a mother of three, in circumstances where the operation of the law may require that if she wishes to remain with her children she will need to take them back to Tonga after having lived in Australia for some years.  However, any subjective hardship that she may feel or that may be visited on her children is not something that the court is at liberty to rectify, notwithstanding article 3 of the Convention.  Accordingly, the application will be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:                 3 February 1999

Appearance for the Applicant:	L Fonua
Counsel for the Respondent:	R Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 February 1999
Date of Judgment:	2 February 1999