FEDERAL COURT OF AUSTRALIA Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118 IMMIGRATION – appeal – whether error of law in failing to consider "back door scheme" – whether error of law in ignoring UN Declaration of the Rights of the Child – whether primary judge failed to follow his conscience – whether failure to take into account policy involves improper use of power, breach of duty or actual bias – whether refusal of a subpoena was a "cover up" –. Judiciary Act 1903 (Cth), s 78B Migration Act 1958 (Cth) Migration Regulations Schedule 3 cl 3001, 3002 Tuitupou v Minister for Immigration & Multicultural Affairs [2000] FCA 117 applied Minister for Immigration & Multicultural Affairs v Teoh (1995) 183 CLR 273 considered Sikahele v Minister for Immigration & Multicultural Affairs [1998] FCA 1453 followed Holani v Minister for Immigration & Multicultural Affairs [1999] FCA 484 referred to Holani v Minister for Immigration & Multicultural Affairs [1999] FCA 707 referred to Re East; Ex parte Nguyen (1998) 159 ALR 108 referred to TAUFA FAKATAVA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1346 of 1999 CARR, SACKVILLE & R D NICHOLSON JJ 16 FEBRUARY 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1346 OF 2000 On appeal from a Judge of the Federal Court of Australia BETWEEN: TAUFA FAKATAVA Appellant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent JUDGES: CARR, SACKVILLE & R D NICHOLSON JJ DATE: 16 FEBRUARY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT Non-constitutional grounds 1 This is an appeal from a judgment of Cooper J given on 28 October 1999. The effect of the judgment was to dismiss an application by the appellant for review of a decision of the Immigration Review Tribunal ("the IRT") given on 27 April 1999. The IRT decision affirmed a decision by a delegate of the respondent made on 18 June 1998 refusing the applicant a Change in Circumstance (Residence) (Class AG) Subclass 806 (Family) Visa under the Migration Act 1958 (Cth) ("the Act"). 2 The appellant is a citizen of Tonga. She entered Australia on 23 December 1992 on a visa which expired on 24 March 1993. She has two children born in Australia (on 4 August 1996 and 4 April 1997 respectively). On 17 October 1997 she lodged her application for the above-mentioned class of visa. The basis of her application was as a "special need relative" in respect of her two children born in Australia. 3 The foundation of the reasoning of the IRT was that the appellant was unable to satisfy one of the essential criteria for the grant of a Subclass 806 Family (Residence) Visa, being that specified in clause 3002 of Schedule 3 to the Migration Regulations 1994 when read with clause 3001(2)(c). These clauses require, in effect, that a visa application must be lodged within 12 months of the appellant having substantive lawful status. The IRT found that the appellant last held a substantive visa on 24 March 1993. As the application was not lodged until 17 October 1997, the appellant could not satisfy the requirement imposed by cl 3002. The IRT stated the criterion was mandatory and there was no discretion to waive it. Accordingly the IRT considered it had no alternative but to affirm the decision under review. 4 On the application to review before Cooper J, thirteen grounds of review were relied upon. Cooper J dealt with these in seven categories. It will be necessary to refer to his Honour's reasons in the course of dealing with the present grounds of appeal. Ground 1 - Back door scheme 5 The first ground of appeal alleges that his Honour erred in that the respondent, through his department, had allowed 2705 off-shore applicants to remain in Australia on a bridging visa while a residence visa was processed overseas during 1995 and 1996 knowing all applicants failed to apply for the visa within the 12 months rule embodied in clause 3002 of Schedule 3 of the Regulations. We have addressed this ground of appeal fully in Tuitupou v Minister for Immigration & Multicultural [2000] FCA 117the reasons in the non-constitutional aspects of which have been delivered this day. We rely on what was there said. In our view the approach taken by Cooper J in relation to grounds 3, 4, 6 and 7 before him was not therefore in error of law. Grounds 2 and 6 – UN Convention on the Rights of the Child 6 This ground asserts that Cooper J ignored the existence of the United Nations Declaration on the Rights of the Child. Ground 6 supports ground 2 in asserting the facts relating to the ratification of the UN Convention. 7 Cooper J dealt with this in considering grounds 8, 11, 12 and 13 before him. He said: "The balance of the issues raised by these grounds allege breaches of United Nations Conventions or Declarations on the rights of the child, and, the application of the decision of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 to the circumstances of this case. In Sikahele, Lindgren J said (at 4-5): "On behalf of Ms Sikahele it was submitted that the United Nations Convention on 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 [sic] 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." The submission was also made in Holani and rejected by Madgwick J at pages 2-3. The Full Court (Einfeld, Finn and Emmett JJ) affirmed that decision. Additionally, the decision in Teoh does not alter the law in Australia that the entry into a treaty by Australia does not create enforceable rights and obligations under Australian municipal law: Teoh at 186-187, 198; Re East; Ex parte Nguyen (1998) 159 ALR 108 at 113, 128. The decision in Teoh goes no further than to hold that where there is room for the exercise of a discretionary judgment there may be a legitimate expectation that the government decisionmaker will exercise the discretion consistently with Australia's treaty obligations. It does not permit decisionmakers to use treaty provisions to make decisions which are contrary to the requirements of Australia's municipal law." 8 In our opinion what was said by Lindgren J in Sikahele is a complete answer to this present ground of appeal before us. In our view Cooper J was not in error of law so far as the ground as expressed implies an error of law. Ground 3 – Failure to follow conscience 9 This ground asserts that Cooper J failed to follow his conscience and speak out against unjust laws and policies. While we are understanding of the feelings of the appellant at being unable to obtain a visa when she has two children in Australia, it was clearly no part of the role of Cooper J to do anything other than apply the law as made by Parliament and the Executive. This ground of appeal does not identify any error of law made by his Honour. Ground 4 – Improper use of power, breach of duty or actual bias 10 This ground asserts that Cooper J wrongly failed to take into account that the respondent, through his department, failed to follow its own policy as set out in Migration Series Instruction MSI-121 effective 8 September 1995 relating to clause 3002 in Schedule 3 to the Regulations. That document stated: "2 PURPOSE OF SCHEDULE 3 2.1 The purpose of the Schedule 3 criteria is: · to encourage non-citizens who have a legitimate basis for remaining in Australia to apply for a further visa before their current substantive visa expires; · to discourage non-citizens from remaining in Australia beyond the period of effect of their substantive visa; and · to prevent non-citizens from benefiting by remaining in Australia unlawfully, that is, by acquiring migration eligibility while remaining without permission. 2.2 At the same time, it is recognised that there are situations in which non-citizens remain in Australia without a substantive visa through circumstances over which they have no control, and situations where there are compelling reasons for granting them permission to remain. The Schedule 3 criteria take account of such circumstances. 2.3 Schedule 3 replaced the Schedule 6 'Illegal Entrant Criteria' in the Migration (1993) Regulations." 11 There is nothing in that statement which could have assisted the appellant. Furthermore it was taken into account by Cooper J. There is an entire absence of any evidence of improper use of power, breach of duty or actual bias so that the conclusion of Cooper J is not shown to be an error of law by this ground. Ground 5 – Alleged cover-up 12 Here it is asserted that the refusal by the respondent to provide documents/ information sought by a subpoena was "a cover-up and a positive attempt to conceal the truth relating to 2705 off-shore applicants in breach of clause 3002 during 1995 and 1996 calendar years". 13 This was the anomaly rectified by legislative amendment and referred to in our reasons in Tuitupou. A subpoena seeking a vast amount of information and documents concerning the persons comprising the group of approximately 2700 was set aside by Registrar Quinn prior to the hearing before Cooper J. Importantly, for the reasons stated in Tuitupou, even had the information been available, it would have given no relevant assistance to the appellant. No error of law is disclosed by this ground. Ground 7 – Alleged constitutional point 14 Here it is asserted that "It is unconstitutional for the Government to enact retrospective laws, namely clause 3002 '12 months rule' which has positive effect of uprooting of Australian citizen children and deny them the country of their own as well the loss of their home land". Cooper J held that this ground raised no issue of constitutional power. 15 It is by no means clear that the appellant's case raises a genuine constitutional issue. Nonetheless we have taken the view that the mandatory language of s 78B of the Judiciary Act 1903 (Cth) requires us to ensure that notices are given in accordance with that section. Accordingly we have directed that a notice in appropriate form be given. We shall deal with the constitutional issue once responses have been secured: s 78B(2)(c). Conclusion 16 For these reasons we consider that no legal error is disclosed by any of the non-constitutional grounds relied upon in this appeal. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Dated: 16 February 2000 Mr L Fonua assisted the appellant, by leave Solicitor for the Respondent: Australian Government Solicitor (Mr M Allatt appeared) Date of Hearing: 16 February 2000 Date of Judgment: 16 February 2000