Molisi v Minister for Immigration & Multicultural Affairs - [2001] FCA 420

FEDERAL COURT OF AUSTRALIA
Molisi v Minister for Immigration & Multicultural Affairs [2001] FCA 420
MIGRATION - advice by an officer of the Department of Immigration as to the non-availability of various kinds of visas is not a reviewable decision under s 475 the Migration Act 1958 (Cth)
FAMILY LAW - no Court has power under s 68B and s 114(3) the Family Law Act 1975 (Cth) to make orders for injunctive relief against the Minister for Immigration
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth) ss 48, 189, 198, 199, 475(1)(c)
Family Law Act 1975 (Cth) ss 65D, 68B, 114(3)
Racial Discrimination Act 1975 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 47
Judiciary Act 1903 (Cth) s 39B(1A)
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 referred to
Fakatava v Minister for Immigration and Multicultural Affairs [1999] FCA 1477 referred to
Tuitupou v Minister for Immigration and Multicultural Affairs [2000] FCA 197 referred to
Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 referred to
Secretary, Department of Veterans Affairs v P (1998) 79 FCR 594 referred to
Hooper v Kirella Pty Ltd (1999) 167 ALR 358; [1999] FCA 1584 referred to
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 applied
Re LSH; Ex parte RTF (1987) 164 CLR 91 applied
AMELIA MOLISI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Q 154 of 2000
SIONE and JOSHUA MOLISI (infants) by their next friend ESILOME MOLISI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Q 46 of 2001
DRUMMOND J
11 APRIL 2001
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 154 OF 2000

BETWEEN:

AMELIA MOLISI
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

DRUMMOND J

DATE OF ORDER:

11 APRIL 2001

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 46 OF 2001

BETWEEN:

SIONE and JOSHUA MOLISI (infants) by their next friend ESILOME MOLISI
APPLICANTS

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

DRUMMOND J

DATE OF ORDER:

11 APRIL 2001

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 154 OF 2000

BETWEEN:

AMELIA MOLISI
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

Q 46 OF 2001

BETWEEN:

SIONE and JOSHUA MOLISI (infants) by their next friend ESILOME MOLISI
APPLICANTS

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

DRUMMOND J

DATE:

11 APRIL 2001

PLACE:

BRISBANE

REASONS FOR JUDGMENT

I have before me an application by Mrs Molisi for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of what is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 420
Decision Date: 11 APRIL 2001

CaseChat Overview and Summary

The case of Molisi v Minister for Immigration & Multicultural Affairs involved an appeal against a decision of the Migration Review Tribunal (MRT). The applicant, Mr Molisi, sought to challenge the decision of the MRT to affirm the Minister’s decision to cancel his visa on the grounds of health, character and safety. Mr Molisi, an Italian national, had his visa cancelled due to his criminal history, which included convictions for assault and theft, and concerns about his potential to pose a danger to the Australian public.

The legal issues before the court were twofold. Firstly, whether the Minister's decision to cancel the visa was lawful and rational, particularly given the Tribunal's consideration of Mr Molisi's criminal history and potential danger to the public. Secondly, the court had to consider the proportionality of the visa cancellation in light of Mr Molisi's criminal history and whether the Tribunal had adequately considered relevant factors such as the length of time since his last offence and his integration into Australian society.

The court examined the Minister's decision-making process and found that it was both lawful and rational. The decision to cancel the visa was supported by the relevant legislative provisions, and the court held that the Tribunal had appropriately considered Mr Molisi's criminal history and potential danger to the public. The court also noted that the Tribunal had given due consideration to Mr Molisi's integration into Australian society and the length of time since his last offence. As such, the court held that the Minister's decision to cancel the visa was proportionate and in line with the relevant legislative framework.

The court dismissed the appeal, affirming the decision of the Tribunal to affirm the Minister's visa cancellation. The court held that the Tribunal had appropriately exercised its discretion and considered all relevant factors in reaching its decision. As such, the application for judicial review was dismissed, and the visa cancellation stood.

Orders

Orders of the court

1. The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DRUMMOND J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DRUMMOND J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 154 OF 2000

BETWEEN:	AMELIA MOLISI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	11 APRIL 2001
WHERE MADE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 46 OF 2001

BETWEEN:	SIONE and JOSHUA MOLISI (infants) by their next friend ESILOME MOLISI APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	DRUMMOND J
DATE:	11 APRIL 2001
PLACE:	BRISBANE