Koloamatangi v Minister for Immigration & Multicultural Affairs

[2001] FCA 728

FEDERAL COURT OF AUSTRALIA

Koloamatangi v Minister for Immigration & Multicultural Affairs [2001] FCA 728

SULIANA KOLOAMATANGI & MELEANE KOLOAMATANGI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 307 of 2001

WHITLAM J
30 APRIL 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 307 of 2001

BETWEEN:

SULIANA KOLOAMATANGI
FIRST APPLICANT

MELEANE KOLOAMATANGI
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

30 APRIL 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The first applicant pay the respondent’s costs.

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 307 of 2001

BETWEEN:

SULIANA KOLOAMATANGI
FIRST APPLICANT

MELEANE KOLOAMATANGI
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	WHITLAM J
DATE:	30 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding was commenced on 26 March 2001 when the first applicant filed an application on behalf of herself and her daughter, the second applicant.  The applicants challenged what was described as the decision of the respondent (“the Minister”) and his delegate, given on or about 24 March 2000, to remove Folau Koloamatangi to Tonga.  Folau Koloamatangi is the husband of the first applicant. 

2. On 20 April 2001, at the first directions hearing, Ms Dale Watson, the Minister’s solicitor, filed in Court a notice of objection to the competency of the application.  On the same day, she filed in the Registry a notice of motion seeking to have the matter summarily dismissed and an affidavit in support of the motion setting out the background to the application.  The first applicant does not dispute the facts set out in that affidavit. 

3. The first applicant relies on her affidavit filed on 24 April 2001, which sets out the background to her arrival in Sydney with her husband thirteen years ago when she was pregnant, the birth of her three children in Australia and the circumstances of the family during their time here.  The applicant says she comes here to put herself upon the mercy of the Court and I understand why she might do that.  The Court’s jurisdiction may be invoked for the purpose of judicially reviewing decisions made by Government officers but it cannot grant permission for her to remain in Australia. 

4. In any event, the decision which is the subject of this proceeding is said to be a decision to remove the first applicant’s husband from Australia. Ms Watson points out that the removal took place pursuant to s 198(6) of the Migration Act1958 (Cth) which provides:

   “An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
   (a)       the non-citizen is a detainee; and

   (b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

   (c)       one of the following applies:

   (i)the grant of the visa has been refused and the application has been finally determined;

   (iii)      the visa cannot be granted; and

   (d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.”

5. This section obliges such an officer to remove a person in Mr Koloamatangi’s situation as soon as reasonably practicable if the terms of pars (a), (b), (c) and (d) above are met.  I am satisfied that the terms were met and that the removal was pursuant to that subsection.  There is, therefore, no substantive decision of the Minister or of any other officer which is amenable to review in this proceeding.

6. Accordingly, I will grant the motion and make an order that the application is 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 Whitlam.

Associate:

Dated:             24 October 2001

The applicants appeared in person.

Solicitor for the respondent:	Ms D J Watson of Australian Government Solicitor
Date of hearing:	30 April 2001
Date of judgment:	30 April 2001