Sikahele, Maliana v Minister for Immigration & Multicultural Affairs [1998] FCA 1453

The applicant ("Ms Sikahele"), applies for a review of a decision of the Immigration Review Tribunal ("the IRT") which it gave on 29 May 1998 affirming a decision of a delegate of the respondent ("the Minister") refusing the grant of a Class 806 Family (Residence) Visa to Ms Sikahele. Ms Sikahele's application for the visa was made on 23 July 1997 and the Minister's delegate refused the application on 10 October 1997. The issue before me proves to be a narrow one, although the circumstances of the case strike me as unusual. I refer to them below. Section 476 of the Migration Act 1958 ("the Act") gives a right of application to the court for review of a "judicially - reviewable decision" on any one or more of the grounds set out in subs 476 (1). The decision of the IRT in the present case is a judicially reviewable decision: par 475 (1) (a). Ms Sikahele relies upon the grounds referred to in pars 476 (1) (a) and (e). She relies upon one matter as supporting both grounds. This is that the IRT did not take into account, in arriving at its decision, the best interests of her children. In particular, she refers to article 3 (1) of the United Nations Convention on the Rights of the Child. Before me, Ms Sikahele has not been legally represented but with the consent of counsel for the Minister, I granted leave to her friend and interpreter, Mr George Fonua, and her brother-in-law, Mr Ofeina Sikahele, to make submissions on her behalf. She has adopted what they have said as her submissions. Ms Sikahele is a citizen of Tonga. She arrived in Australia from Tonga on 8 February 1992 on a visitor's visa which expired on 8 March 1992. She then became an illegal entrant. Since that time she has not held a substantive visa. Apparently on 28 June 1992 she married, in Australia, a permanent resident of Australia named Siosaia Sikahele. There were born of the marriage a first child on 21 August 1993 and a second child on 30 March 1995. In circumstances which it has not been relevant to explore, in 1996 Ms Sikahele applied for a protection visa. I do not know who, if anyone, advised her to do so. However, from what I have read in the papers, that application seems to have been baseless. A delegate of the Minister refused it on 9 July 1996. Apparently there have been one or more applications by Ms Sikahele for other visas since that time but I am not sure about this, and again it has not been necessary to explore this matter for present purposes. What is important, however, is that by reason of the refusal of the protection visa, s 48 of the Act has had the effect that it has been possible for her to apply only for a visa of a class prescribed by the regulations for the purposes of s 48 and not for a visa of any other class. Migration Regulation 2.12 provides that for the purposes of s 48 certain classes of visas are prescribed. Apparently, the only one relevant to Ms Sikahele is a "Change in Circumstances (Residence) (Class AG)" visa. On the present hearing the question has not been explored what other visas, if any, Ms Sikahele might have been able to apply for but for the operation of s 48. Ms Sikahele gave birth to a third child of the marriage on 28 December 1996 and to a fourth child of the marriage on 15 March 1998. In the intervening period she had made, on 23 July 1997, the application which has given rise to the present proceeding. Section 30 of the Act provides for the issue of a "permanent visa" to remain in Australia indefinitely. Section 65 provides, importantly in the present case, as follows: "65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) .................................................. (ii) the other criteria for [the visa] prescribed by this Act or the regulations have been satisfied; and (iii) ..................................................; and (iv) ...................................................; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa." (emphasis supplied) It will be noted that if he or she is not satisfied that the criteria prescribed by the regulations for the grant of a visa have been satisfied, the Minister must refuse to grant the visa - there is no discretion. Migration Regulation 2.01 provides that for the purposes of s 31 of the Act, the prescribed classes of visas are, inter alia, such classes (other than those created by the Act itself) as are set in the respective items in Schedule 1 to the Regulations. Of the "Change in Circumstances (Residence) (Class AG)" visa, there are several sub-classes. Ms Sikahele's application was considered under sub-classes 802 (Child), 804 (Aged Relative), 806 (Family) and 833 (Certain Unlawful Non-Citizens). Sub-class 806 (Family) provides by subcl 806.212 that one of the criteria to be satisfied is that the applicant satisfies the criterion described in cl 3002 of Schedule 3. Schedule 3 cl 3002 establishes as a criterion to be satisfied by an "Unlawful Non-Citizen" the following: "3002 The application is validly made within 12 months after the relevant day (within the meaning of sub-clause 3001(2))." When one turns to subcl 3001 (2) one finds that in the case of Ms Sikahele, because she became an illegal entrant before 1 September 1994, the "relevant day" is the day when she became an illegal entrant, in her case 8 March 1992. It follows that it is a criterion which she had to satisfy that she had made her application for the visa within twelve months of 8 March 1992, that is, by 8 March 1993. But, as already noted, she did not do so until 23 July 1997. It follows, as the Tribunal correctly held, that Ms Sikahele did not satisfy the criteria for the grant of the particular visa for which she applied and that the Minister was required by law to refuse it. Accordingly, no error of law or failure to observe required procedures has been established and Ms Sikahele's application must be dismissed with costs. Notwithstanding all that precedes, the case gives cause for concern. I should record that Mr Reilly of counsel for the Minister, in his usual helpful manner, has indicated that some conversations have taken place between representatives of the Minister and Ms Sikahele outside Court with a view to providing her with information and advice as to any alternative course which may be available. (It has not been appropriate for Mr Reilly to explore those matters on this hearing.) All I can properly do is to draw the attention of those responsible to the availability of s 351 of the Act which, as is well known, permits the Minister to substitute a result more favourable to Ms Sikahele than the decision of the IRT, if the Minister thinks it in the public interest to do so. On Ms Sikahele's behalf, a number of considerations have been urged as to why a more favourable result should find favour. These all centre upon the position of her four children who are apparently citizens of Australia by birth (see Australian Citizenship Act 1948 (Cth), s 10) and who live with Ms Sikahele and her husband (their father). The eldest child is a pupil at pre-school. It seems that the family is well established. It would obviously be very sad and contrary to the interests of the four children if the family were broken up. On behalf of Ms Sikahele it was submitted that the United Nations Convention of the Rights of the Child, which was ratified by the Commonwealth Executive in 1990 and entered into force for Australia on 16 January 1991, somehow overcame the operation of the provisions of the Act and the Regulations to which I have referred. Ms Sikalele referred, in particular, to article 3 (1) which provides: "1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." I do not accept the submission. It is one thing to say that a decision maker must take into account the Convention when the decision maker is exercising a discretion or is attempting to resolve an ambiguity, but it is an altogether different thing, and one contrary to law, to say that a decision maker or court must or may ignore an unambiguous mandatory time constraint imposed by an Act in favour of the Convention; cf Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-7 (Mason CJ and Deane J), 298 (Toohey J) and cases there cited. As I indicated earlier, the result will be that the application will be dismissed with costs but I have no doubt that various comments which I have made will be communicated to a person or persons at an appropriate level of authority within the Department. The Court orders that: