Tafokitau v Minister for Immigration and Multicultural Affairs

[1999] FCA 1478

FEDERAL COURT OF AUSTRALIA

Tafokitau v Minister for Immigration & Multicultural Affairs [1999] FCA 1478

MIGRATION - Review of decision from the Immigration Review Tribunal to not grant a Change in Circumstances (Residence) (Class AG) Subclass 806 (Family) Visa - consideration of the “12 months rule” in Schedule 3, clause 3002 and any effect Australian citizen children may have.

Migration Act 1958 (Cth) ss 475, 351(1)

Migration Regulations Schedule 3, clause 3002

Taufa Fakatava v Minister for Immigration and Multicultural Affairs [1999] FCA 1477 Foll
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Cited
Sikahele v The Minister for Immigration and Multicultural Affair [1998] FCA 1453 Foll

TIMOTE TAFOKITAU v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS
NO N438 OF 1999

COOPER J
BRISBANE (HEARD IN SYDNEY)
28 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 438 OF 1999

BETWEEN:	TIMOTE TAFOKITAU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	COOPER J
DATE OF ORDER:	28 OCTOBER 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant pay the respondent’s costs of and incidental to the application including reserved costs, if any, to be taxed if not agreed.

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 438 OF 1999

BETWEEN:	TIMOTE TAFOKITAU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	COOPER J
DATE:	28 OCTOBER 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The Applicant is Timote Tafakitau and a citizen of Tonga.  His wife, Maleane, is also a citizen of Tonga.  They have four children, all of whom were born in Australia.  The eldest is an Australian citizen.  The other three are citizens of Tonga.

2. On 4 September 1998 the Applicant lodged on behalf of himself, his wife, and the three non-Australian citizen children, a combined application for Change in Circumstance (Residence) (Class AG) Visas.  The claim as made was under the Family 806 Subclass.  However, the application was assessed against all subclasses.

3. On 28 September 1998 each applicant’s application for a permanent residence visa was refused by the delegate of the respondent.  The applicants applied for review of the delegate’s decision on 22 October 1998.  Each of the decisions under review was affirmed on 22 April 1999 by the Immigration Review Tribunal (“the IRT”).

4. On 17 May 1999, pursuant to s 475 of the Migration Act 1958 Cth (“the Act”), the Applicant sought a review of the decision of the IRT.

5. The Applicant arrived in Australia on 29 April 1982.  He entered Australia on a visitor visa which expired on 28 July 1982.  His wife, then a single woman, entered Australia on a visitor visa on 7 April 1985.  Her visa expired on 9 April 1985.  Neither the Applicant nor his wife have held a substantive visa since the expiration of their respective visitor’s visas.  The Applicant and his wife have remained in Australia since the expiration of their respective visitor’s visas.  They married in Australia on 13 June 1987.

6. The applications for permanent resident visas were refused by the delegate, and confirmed on review by the IRT, because no applicant could comply with the criteria attaching to the grant of a visa of the type for which application was made. They could not comply with clause 3002 of the Third Schedule to the Migration Regulations 1994 (Cth) (“the Regulations”). This criterion requires that the application be made within a twelve month period which commences to run from the date when the applicant last held a substantive visa.

7. The grounds relied upon for review of the decision were :

   “1.The applicant was refused a visa by the delegate on the basis of clause 3002 ‘12 months rule’ involved an error of law.

   2.The Principal Member refused a request from the applicant to refer the decision to Administrative Appeals Tribunal involved an error of law and actual bias.

   3.The delegate failed to give a proper genuine and realistic consideration to the interests of Australian citizen children and effect of children citizenship.

   4.The applicant was denied access to a Scheme relating to unlawful non-citizens which the Respondent had granted 2705 offshore applicants with bridging visas to remain in Australia during 1995 and 1996 calendar years while the visa application was processed overseas in contravention of clause 3002 ‘12 months rule’.

   5.The respondent failed to follow its own policy in accordance with Migration Series Instruction MSI No 121 relating to clause 3001 and 3002 dated 8 September 1995 and produced by L Budgen, A/g First Assistant Secretary, Policy and Program Development Division in breach of clause 3002 as per point 4 above.

   6.Clause 3002 was amended by Statutory Rules 268 of 1995 effective from 1 November 1995 was a positive step taken by the Government to victimise Australian citizen children in contravention of UN Convention on the rights of the child.

   7.The Tribunal has a discretion under section 349(2)(c) of the Act to refer the decision to the minister for reconsideration.

   8.Consideration of Teoh’s case - the law as established by the High.

   9.UN Convention on the rights of the child.

   10.UN Declaration on the rights of the child.

   11.It is unstitutional [sic] for the Government to make legislation which has the effect on Australian citizen to deprive them of the country of their own and linguistic disruption of their childhood, as well as the loss of their homeland.

   12.The delegate failure to draw attention to the rights of the child as being the primary consideration was an incorrect application of the Act s 476(2)(e).”

8. These grounds are substantially identical with the grounds taken in Taufa Fakatava v Minister for Immigration and Multicultural Affairs [1999] FCA 1477 (NG450 of 1999). Both applications were heard by me on the one day. I have delivered my judgment in NG450 of 1999 today.

9. Grounds 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11 in the present application replicate Grounds 1, 5, 6, 7, 8, 9, 11, 12, 13 and 10 respectively in NG450 of 1999.  The same considerations which led to the rejection of the grounds as proper grounds for review in NG450 of 1999 apply to the present case, and I reject each of the grounds for like reasons. 

10. Additionally, there was an application to remit this application to the Family Court of Australia pursuant to s 18A(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application is likewise refused for the same reasons given in NG450 of 1999.

11. On 16 March 1999 the applicants, by their adviser, wrote to the Principal Member of the IRT seeking referral of the application for review to the Administrative Appeals Tribunal.  On 1 April 1999 the request was declined and the applicants were advised in writing on that date.  Those circumstances are the basis for Ground 2 of the application before this Court.

12. There was absolutely no evidence of actual bias on the part of the Acting Principal Member in refusing the request to remit.  Nor was the Applicant able to point to any error in the exercise of the discretion.

13. The Applicant pointed to three circumstances which it was submitted gave rise to an important issue which should have been referred.  Those were :

    (a)that the Applicant’s eldest child was an Australian citizen whose rights were being adversely affected;

    (b)that the decision in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 allowed the respondent to waive any requirements of the Act and Regulations where an Australian citizen who was a child was involved;

    (c)that the IRT was not a Court.

14. These circumstances do not show that the decision of the Principle Member of the IRT miscarried for some error of law.  There is no reviewable error made out under Ground 2.

15. Ground 12 involves, without attribution, the requirements of Article 3(1) of the United Nations Convention on the Rights of the Child to the decision making process.  For the reasons which I gave in NG450 of 1999, and for the reasons given by Lindgren J in Sikahele v The Minister for Immigration and Multicultural Affair [1998] FCA 1453 at 4 - 5, the Convention provisions do not allow the provisions of the Act and Regulations to be avoided where otherwise the circumstances required that those provisions be applied.

16. The Applicant has not been able to make out any ground of reviewable error and the application must be dismissed. The only course open to the applicants while remaining in Australia is to make application to the Minister under s 351(1) of the Act for the exercise of a favourable discretion under that section.

17. The respondent has sought an order for costs.  The application having failed, there is no reason why costs should not follow the event.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:
Dated:             28 October 1999

For the Applicant:	L Fonua
Counsel for the Respondent:	S McNaughton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 August 1999 (Sydney)
Date of Judgment:	28 October 1999 (Brisbane)