Tuitupou v Minister for Immigration & Multicultural Affairs [1999] FCA 1339 (23 September 1999)

Last Updated: 28 September 1999

CATGEORY: NO QUESTION OF PRINCIPLE

FEDERAL COURT OF AUSTRALIA

Tuitupou v Minister for Immigration & Multicultural Affairs [1999] FCA 1339

Tuitavake v Minister for Immigration & Multicultural Affairs [1999] FCA 590 Cited

Pillay v Minister for Immigration & Multicultural Affairs [1999] FCA 1173 Cited

SIONE MOLITIKA TUITUPOU v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No 461 of 1999

KIEFEL J

SYDNEY

23 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 461 OF 1999

ON REVIEW FROM A DECISION OF THE IMMIGRATION REVIEW TRIBUNAL

BETWEEN:	SIONE MOLITIKA TUITUPOU Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	KIEFEL J
DATE OF ORDER:	23 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent's costs on the 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 461 OF 1999

ON REVIEW FROM A DECISION OF THE IMMIGRATION REVIEW TRIBUNAL

BETWEEN:	SIONE MOLITIKA TUITUPOU Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	KIEFEL J
DATE:	23 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant seeks review of the "decision of the delegate of the Minister and the Immigration Review Tribunal". In the body of the application, however, it is the decision of the Tribunal of 27 April 1999 which is identified. It affirmed the decision of the delegate.

2 The applicant is a citizen of Tonga and arrived in Australia on 9 November 1995 on a Tourist Visa. It expired on 10 February 1996. That date, and the fact that the applicant has not held any other substantive visa to remain in Australia since that date, is of importance in this matter.

3 On 31 January 1996, the applicant applied for a Protection Visa. His application for refugee status was refused on 19 February 1997. The applicant applied for a Family (Residence) (Class AO) visa on 9 May 1996 and that application was refused. Those decisions are not the subject of an application for review.

4 On 11 March 1997, the applicant applied for a Change in Circumstances (Residence) (Class AG) visa. Visa subclass 806 (Family) was nominated as the basis for the application. The delegate determined that the relevant criteria prescribed by clause 806.211(d) of Schedule 2 of the Migration Regulations had not been satisfied. The relationship of "cousin", that identified in the application, was not included in the definition of "relative" in the Regulations and he did not otherwise qualify as the type of relative to which the criteria then referred, relevantly, a "special need relative". In addition, the application was filed more than 12 months after the "relevant day", which was taken to be on the expiry of his substantive visa. It is this last additional criteria which provided the basis for the Tribunal's decision, affirming the decision to refuse the grant of the Change in Circumstance visa.

5 The requirements of clause 806.212(a) specify that Schedule 3 criterion 3002, which sets the time limit in question, also be satisfied. Criterion 3002 requires an application such as that under consideration to be made within 12 months after "the relevant day". That term is defined (clause 3001(2)). Applied to the applicant's circumstances, it would be taken to refer to the day, after 1 September 1994, when he ceased to hold a substantive visa, namely 10 February 1996. (3001, (2)(c)(i) and (iii)). The application was not filed until 11 March 1997.

6 The validity of the clause has been accepted, as has its application according to its terms: Tuitavake v Minister for Immigration & Multicultural Affairs [1999] FCA 590; Pillay v Minister for Immigration & Multicultural Affairs [1999] FCA 1173. The terms of the criteria do not allow the exercise of any discretion with respect to the time limit. I can therefore see no basis for challenge to the Tribunal's decision.

7 The submissions for the applicant do not otherwise disclose grounds for review.

8 The only submission advanced for the applicant on the hearing related to his contention that he has been denied access "to a backdoor scheme". He says that some 2705 offshore applicants were granted bridging visas in Australia whilst their "offshore" applications were considered. That position was dealt with by amendments restricting eligibility for bridging visas. The applicant might have been eligible for such beneficial treatment at an earlier point, but the fact that a different situation existed under the Statute and regulations, which others were able to take advantage of, is not legally relevant to this application. The Tribunal was not required to have regard to it. The allegation of concealment of the position which earlier prevailed is also not relevant in these proceedings. Whether there are other, compassionate, grounds for the grant of a visa is, as the Tribunal pointed out, not a basis open to it to consider. Its considerations were limited to the statutory criteria. The court does not have jurisdiction to consider applications on such grounds.

9 The application must be dismissed.

10 The applicant submits that no order for costs ought to be made against him. I have already provided short oral reasons on this question. The Minister's legal representatives alerted the applicant at an early point to decisions which confirmed the Tribunal's approach and he was advised that an order for costs would be sought. There does not seem to me any more that they could do to avoid this situation. There will be an order that the applicant pay the respondent's costs on the application.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 23 September 1999

The Applicant:	In Person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 September 1999
Date of Judgment:	23 September 1999