Ofati v Minister for Immigration & Multicultural Affairs

EX TEMPORE REASONS FOR JUDGMENT 1 In this matter, I have dealt with the argument at the directions hearing, and quite summarily, because the applicant migrant is here, with his friend Mr Fonua, to whom I have given leave to appear on his behalf, and all the papers are before the Court. It is clear that this is another of the apparently rather distressingly numerous cases where a migrant who has married an Australian citizen, and had Australian children, is unable to obtain a visa in the normal course, because the application for the visa is out of time under the regulations. As the Immigration Review Tribunal said in the present case, the application of the relevant provisions is not discretionary, and the Tribunal has no power to waive the criterion which stands in the way of the applicant. There have been previous cases in which the Court has affirmed that position; I refer, in particular, to Sikahele v Minister for Immigration and Multicultural Affairs, an unreported decision of Lindgren J given on 10 November 1998, and to a recent decision of my own, Muli v Minister for Immigration and Multicultural Affairs [1999] FCA 1155. 2 In the present case, the applicant married, on 9 November 1992, a woman who is an Australian citizen, and two children have been born to that marriage, both of whom are Australian citizens, one on 25 March 1994 and the other on 25 December 1998. I should add it is said that the applicant and his wife are in fact living together. Nevertheless, the Tribunal was without power to allow his application for a visa. I was informed from the bar table that, in the normal course, what he would have to do is to go outside Australia and make a further application. In the case of a man apparently of limited means, who does not appear to be able to employ a solicitor to conduct his case, and has done so through the unqualified assistance of Mr Fonua, this is plainly a significant burden which will be imposed on him, and a significant disruption of family life. 3 I do not propose to rehearse the matters to which Lindgren J referred in the decision I have cited, and to which I also referred in Muli. But, as was done in those cases, I draw the attention of those who are responsible for advising the Minister to his power under s 351, and to the circumstances of the case, so far as they have appeared at this hearing, at which, of course, the Minister was represented. 4 The remaining issue is the issue of costs. I am informed that it is in accordance with general policy that the Minister seeks an order for costs. The Court has, under the Federal Court of Australia Act 1976, an unfettered discretion in relation to costs, and many decisions have discussed the exercise of that discretion in cases more or less similar to the present. For reasons which I elaborated more fully in Muli, it seems clear to me that, in a case such as the present, it would not be appropriate for me to exercise my discretion so as to impose a further burden on the applicant, and indirectly on his young Australian children. I think their position is relevant, because of the Convention Relating to the Status of Children, and because of the considerations discussed by Gaudron J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 304-305, a judgment that was followed in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 613; but if there had been no children, it would still have seemed to me that, on the facts otherwise of the present case, it would not have been appropriate to make an order for costs against the applicant. Accordingly, I dismiss the application, but I make no order as to costs. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.