Tavalu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 419 (5 December 2002)

Last Updated: 17 December 2002

FEDERAL COURT OF AUSTRALIA

Tavalu v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 419

SILIA TAVALU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 861 of 2002

WILCOX, SPENDER and RYAN JJ

5 DECEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 861 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SILIA TAVALU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX, SPENDER and RYAN JJ
DATE OF ORDER:	5 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

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 861 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SILIA TAVALU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX, SPENDER and RYAN JJ
DATE:	5 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1 This is an appeal from a decision of Moore J given on 15 August 2002.

2 The notice of appeal sets out five grounds. Some of these are not intelligible. Some are plainly incorrect. For example, it is not correct to say that Moore J found that the delegate was not acting in good faith in making the decision. Nor does it appear that Moore J refused time to file and serve notices pursuant to s 78B of the Judiciary Act 1903. In any event, no constitutional question was raised.

3 When asked to elaborate on the grounds, the appellant was only able to say that she could not believe the Minister's decision was correct because he had refused to consider intervening in her case. The appellant also drew attention to the fact that the letter notifying the decision was not signed personally by the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister").

4 It seems to me these matters do not relate to any ground of appeal taken by the notice of appeal; nor indeed, any ground that would be available to the appellant.

5 In my opinion this case is covered by s 476(2) of the Migration Act 1958. It appears the relevant decision was made by the Minister. Consequently the jurisdiction of the Court is excluded. I also draw attention to s 351(7) of the Act which provides that the Minister does not have a duty to consider whether to exercise the power under section 351(1).

6 In my view the appeal must fail and the appropriate order is the appeal be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 5 December 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 861 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SILIA TAVALU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX, SPENDER and RYAN JJ
DATE:	5 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

SPENDER J:

7 I agree.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 5 December 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 861 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SILIA TAVALU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX, SPENDER and RYAN JJ
DATE:	5 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

RYAN J:

8 I agree.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated: 5 December 2002

The appellant appeared in person.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 December 2002