Holani v Minister for Immigration & Multicultural Affairs

[1999] FCA 707

FEDERAL COURT OF AUSTRALIA

Holani v Minister for Immigration & Multicultural Affairs [1999] FCA 707

ONITINA HOLANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 143 of 1999

EINFELD, FINN, EMMETT JJ
SYDNEY
26 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 149 OF 1999

BETWEEN:	ONITINA HOLANI Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	EINFELD, FINN, EMMETT JJ
DATE:	25 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This appeal is from a judgment of Justice Madgwick given on 2 February 1999, which itself reviewed a prior decision of the Immigration Review Tribunal.  The issue at stake in the litigation was Mrs Holani's entitlement to permanent residency in Australia in circumstances which are set out fully in his Honour's judgment and in the reasons of the Tribunal. 

2. We have been informed that this matter is not the first piece of litigation before the court involving the applicant, but although there was some effort to connect it with the other or others, this matter raises only a consideration of whether Mrs Holani had complied with a statutory prerequisite to a visa for permanent residency which she was seeking.

3. The Tribunal and Justice Madgwick both held that she did not comply with the pre-requisite in that her application was not made within 12 months of the expiry of the last substantive visa which she had held.  This requirement is laid down by criteria 3001 and 3002 of Schedule 3 to the Act.  The learned first instance judge set out the reasons why the application for permanent residency was bound to fail and for his Honour's consequent dismissal of the application to review the decision of the Tribunal. 

4. We have carefully considered the reasons given by the Tribunal and by the learned first instance judge, and have particularly given attention to the detailed submissions made on behalf of the appellant in these proceedings.  None of those submissions, as it appears to us, address the matter which has to be determined in this case.  They may raise important issues for the Minister to consider if a further application is made for some other form of intervention, but they do not bear on the matter which is before this Court at this time or which was before Justice Madgwick. 

5. In our view, no basis has been shown for the finding of any error by his Honour in his endorsement of the view of the Tribunal, nor has anything been shown as to why or in what way the Tribunal itself had erred in its consideration of this particular matter.  In the circumstance there is no option for us but to dismiss the appeal from the decision of Justice Madgwick.

[AFTER DISCUSSION]

1. The court orders that the appellant pay the respondent's costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Einfeld, Finn and Emmett JJ.

Associate:

Dated:            25 May 1999

The appellant was represented by Mr Liufau Fonua
Counsel for the Respondent:	Ms V. A. Hartstein
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 May 1999
Date of Judgment:	25 May 1999