Hufanga v Minister for Immigration and Multicultural Affairs

[1999] FCA 1422

FEDERAL COURT OF AUSTRALIA

Hufanga v Minister for Immigration & Multicultural Affairs [1999] FCA 1422

TAUMOE-VAHA HUFANGA v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 548 of 1999

HILL J
8 OCTOBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 548 OF 1999

BETWEEN:

TAUMOE-VAHA HUFANGA
Applicant

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS

Respondent

JUDGE:

HILL J

DATE OF ORDER:

8 OCTOBER 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 548 OF 1999

BETWEEN:

TAUMOE-VAHA HUFANGA
Applicant

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS

Respondent

JUDGE:	HILL J
DATE:	8 OCTOBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant, Ms Taumoe-Vaha Hufanga applies to the Court under s 476 of the Migration Act 1958, for judicial review of a decision made by the Immigration Review Tribunal affirming a decision previously made by a delegate of the respondent Minister for Immigration and Multicultural Affairs, to refuse to grant to her and also her first daughter a Change in Circumstance (Residence) (Class AG) visa.

2. The amended application on its face appears to be an application solely by Ms Hufanga and not by her as well on behalf of her daughter.  The applicant is a citizen of Tonga.  She entered Australia on 5 September 1995 on a visa which expired on 5 December 1995.  She has held no substantive visa since that date.  Her first daughter was born in Australia on 29 November 1995.  A second daughter, Moana, was born on 22 September 1997.

3. The application which was initially made, so far as it related directly to Ms Hufanga, was an application for a visa under a subclass in Part 806 of Schedule 2 to the Regulations.  A relevant criterion that needed to be satisfied at the time of application was that the applicant satisfy schedule 3, criterion 3002.

4. That criterion, when read together with criterion 3001, required the application she made to have been made within 12 months after the “relevant day” that being defined in 3001(2), relevantly, as being the last day she held a substantive visa. 

5. As has already been noted, that was 5 December 1995.  The application she made was lodged on 17 October 1997, that is to say more than 12 months after the visa she originally had had expired.  The Tribunal held that it had no discretion to waive the time period in which the application had to be made.  It referred to the decision of Lindgren J in Sikahele v Department of Immigration and Multicultural Affairs (unreported) 10 November 1998 as authority for this.

6. As no other subclass criteria could be satisfied by Ms Hufanga, the Tribunal felt that it had no alternative but to affirm the decision under review.  I should say that it has not been suggested that any other class or subclass of visa could be satisfied by her. 

7. In the course of its reasons, the Tribunal said that because Ms Hufanga did not hold a valid visa when her first daughter was born, in accordance with s 78 of the Migration Act, her daughter was an illegal entrant at the time of her birth.  She had never been granted an entry permit or substantive visa since that time.  This comment seems rather peculiar, given that it is apparent that Ms Hufanga did hold a valid visa when her first daughter was born.  One would have thought that it was incumbent upon the Tribunal to consider whether the daughter thus complied with any other possible class or subclass of visa.  It did not do so.  However, the matter does not form part of the application which Ms Hufanga has made to the Court and in those circumstances I do not and cannot deal with it.  It is from this decision of the Tribunal that Ms Hufanga applies to the Court. 

8. The amended application alleges that the Tribunal erred in law.  The substantive ground is an alleged failure to take into account the rights of the applicant’s child and the effect of that child’s citizenship.  Reference is made to the Administrative Decisions (Judicial Review) Act 1977, which of course has nothing to do with the present application.  The application also asserts that the 12 month period is waivable where an Australian citizen is involved and that in some way or other the Family Law Act 1975 has something to do with this.

9. I should say, for the purposes of clarity, that the child referred to in the application is not the first daughter to whom I have already made reference but rather the second daughter, Moana. Moana is an Australian citizen, having gained that citizenship pursuant to s 10(1) of the Australian Citizenship Act 1948 (Cth).

10. Her father is an Australian citizen.  In written submissions, that were filed on Ms Hufanga’s behalf, reference is made to the Human Rights and Equal Opportunity Commission Act 1986 which contains in the third schedule the Declaration of the Rights of the Child (“the Declaration”) and the United Nations Convention on the Rights of the Child (“the Convention”). It is said that this Declaration and the Convention in some way have “some legal force” in the present case. 

11. Unfortunately, the time limit for making an application of the kind here involved is mandatory.  It cannot be waived by the Minister directly or the Tribunal on a review of a decision of the Minister or his delegate.  In addition to the decision of Lindgren J in Sikahele, reference should also be made to the decision of Madgwick J in Holani v the Minister for Immigration and Multicultural Affairs (1999) FCA 484. An appeal from this decision was dismissed by a Full Court of this Court on 26 May 1999 by Einfeld, Finn and Emmett JJ.

12. I am of course bound by a decision of the Full Court to find that the Tribunal had no power to waive the 12 months requirement whatever impact the Declaration or the Convention may have in cases where a discretion arises, a matter dealt with by the High Court in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273. The Declaration and Convention clearly have no application to a case where the application is brought out of time and where, as here, the Tribunal has no power to waive the time requirement or extend it.

13. In the written submissions it is submitted that the applicant:

    " … was properly informed by the Tribunal that she had a right of appeal which could only exercised (sic) within a time period.  The applicant is unrepresented and asks the Court to make no order as to costs and the applicant refers to a favourable decision in the following cases. … ”

    The submissions then refer to two decisions of Burchett J in which no cost orders were made. 

14. The facts of those cases were quite different from those of the present.  This is a case where the applicant sought to challenge the Tribunal’s decision notwithstanding that there was no ability in the Tribunal to extend time.  Not only did the Tribunal have no power so to do but also the Tribunal’s reasons refer to authority in this Court where it is clear that this was the case.  Notwithstanding, the appellant chose to appeal.  This is not a case where some manner of principle was involved in the appeal.  Unfortunately, it is the case of an application to this Court which had no prospects of success.  The fact that Ms Hufanga may be unable to pay the costs if they are ordered to be paid by her is not of itself a ground for not making a cost order. 

15. In the circumstances I would dismiss the application and order the applicant to pay the Minister's costs of it. 

16. Before concluding these reasons I should mention that when the matter was called for hearing a Mr Fonua who describes himself as an “agent” sat at the Bar table, presumably for the purpose of assisting Ms Hufanga.  I indicated that I had no objection to his doing so but that because he was not a legal practitioner he had no right to appear to argue the case for her.

17. Ms Hufanga indicated that she wished, I am not sure whether she meant then or later, to appeal my indication of view that Mr Fonua not being a lawyer had no right to appear.  As I said in the course of that discussion no application was made by him for leave to appear.  Whether I would or would not have permitted him to appear was not a matter upon which it was necessary to rule.  Experience however has unfortunately shown that rather than assist the Court Mr Fonua has generally not been able to do so.

18. At some stage he withdrew from the bar table thereby presumably voluntarily deciding he did not want to assist the applicant.  I certainly in no way encouraged him to withdraw.  He, however, remained sitting at the back of the Court.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill .

Associate:

Dated:             8 October 1999

The Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 October 1999
Date of Judgment:	8 October 1999