Sawatwet v Minister for Immigration and Multicultural Affairs

[2001] FCA 674

FEDERAL COURT OF AUSTRALIA

Sawatwet v Minister for Immigration & Multicultural Affairs
[2001] FCA 674

WANTHANEE SAWATWET v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 82 OF 2001

GYLES J
SYDNEY
4 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 82 OF 2001

BETWEEN:	WANTHANEE SAWATWET APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	4 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the respondent’s costs of this application.

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 82 OF 2001

BETWEEN:	WANTHANEE SAWATWET APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	4 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE)

1. The applicant is a citizen of Thailand who made application for permanent residency.  That was refused and the refusal was ultimately reviewed by the Migration Review Tribunal (“the MRT”).  By the decision of 3 January 2001 the MRT affirmed the decision under review, its particular finding being that the applicant was not entitled to the grant of a temporary Extended Eligibility (Class TK) Sub-Class 820 (Spouse) visa.  The proceedings in this Court were commenced by application on 29 January 2001, the basis for the application being that the decision “… is not right, legally …”, and the particular grounds identified were:

   “The MRT decision made a legal mistake when interpreting the words ‘compelling circumstances’ in the migration regulations”.

2. When the matter was returned before this Court on 15 February 2001 various orders were made by consent including an order that the applicant file and serve any amended application and evidence upon which she proposed to rely on or before 8 March 2001 and that she should file and serve an outline of submissions on or before five working days prior to the hearing date.  There was no step taken by the applicant pursuant to either order. 

3. When the matter came on for hearing today the applicant referred on more than one occasion to the fact that she had made arrangements for a solicitor to represent her, perhaps she had approached more than one solicitor.  According to the applicant, on short notice she was told that the solicitor would not appear and that she should abandon the application.  She however makes no application for adjournment of the proceedings and, I hasten to say, no proper basis for any adjournment has in any event been laid.

4. The reality of the situation is that she is unable to assist with any argument as to any errors of law that may have been made by the MRT.  Due to the procedures of the Court I have had the advantage of being able to read the MRT’s decision and I have the advantage of written submissions prepared by counsel for the respondent.  I can find no obvious error of law in the way the MRT approached this matter and in my view the respondent's written submissions to which I have referred reliably analyse the somewhat convoluted regulatory framework, the net result of which requires the MRT to be satisfied positively that there were compelling circumstances for the grant of the relevant visa.

5. Having read and considered the respondent’s submissions, which should be retained with the papers as I have effectively incorporated them by reference as part of this decision, I am satisfied that the decision of the MRT is not affected by any relevant legal error and that the MRT’s decision properly and adequately sets out both the facts of the matter and the legislative provisions which affect its decision. 

6. As I have said, I can find no error of law in the way the MRT did its duty in this case.  I therefore dismiss the application.

7. I order that the applicant pay the costs of the respondent of this application.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             6 June 2001

The Applicant was self represented
Counsel for the Respondent:	MJ Leeming
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	4 June 2001
Date of Judgment:	4 June 2001