Kolotau v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCAFC 421

FEDERAL COURT OF AUSTRALIA

Kolotau v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCAFC 421

SIONE KOLOTAU and FELIUAKI KOLOTAU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 966 of 2002

WILCOX, SPENDER AND RYAN JJ
5 DECEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 966 of 2002

BETWEEN:	SIONE KOLOTAU FELIUAKI KOLOTAU APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	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 appellants pay the costs of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs.

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 966 of 2002

BETWEEN:	SIONE KOLOTAU FELIUAKI KOLOTAU APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WILCOX, SPENDER AND RYAN JJ
DATE:	5 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. Although the notice of appeal contains eight grounds, the appellants have raised only three points.  Two of those points, namely the matters raised in paragraphs 2 and 3 of the notice of appeal, are conceded by Mr Kolotau, who has appeared for himself and his wife, to be factually wrong.  We need not trouble with them anymore. 

2. The remaining five grounds, raise a question of constitutional power.  This is most precisely stated in ground 4, namely:

   “That it is beyond the power of the Commonwealth to enact legislation under the Migration Act pursuant to sections 474, 475 and 476, having an unjust effect on individual and citizens of Australia.”

3. The constitutional validity of this legislation was considered by a Full Court of this Court in NAAV v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 228. The Full Court unanimously held the legislation is not constitutionally invalid. This Court is bound by that decision.

4. We are informed by counsel for the Minister that notices have been given to the various Attorneys-General under s 78B of the Judiciary Act 1903. Accordingly, it is open to us to deal with the constitutional point. Having regard to the decision of the Full Court in NAAV, we have no alternative other than to reject the claim made by the appellant in respect of the constitutional validity of the legislation.  This means that there is no basis upon which the appeal can succeed.

5. Accordingly, the order of the Court will be that the appeal be dismissed and the appellants pay the costs of the respondent.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             5 December 2002

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