Tafokitau v Minister for Immigration and Multicultural Affairs

[2000] FCA 119

FEDERAL COURT OF AUSTRALIA

Tafokitau v Minister for Immigration & Multicultural Affairs
[2000] FCA 119

MIGRATION – appeal – non-constitutional grounds – whether error of law in failing to consider “back door scheme” – whether error of law in ignoring UN Declaration of the Rights of the Child – whether primary judge failed to follow his conscience – whether failure to take into account policy involves improper use of power, breach of duty or actual bias – whether refusal of a subpoena was a “cover up”.

Migration Act 1958 (Cth)
Migration Regulations, Schedule 3, cls 3001, 3002

Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118, followed

TIMOTE TAFOKITAU v MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS

N 1338 of 1999

CARR, SACKVILLE & R D NICHOLSON JJ
16 FEBRUARY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1338 OF 1999

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	TIMOTE TAFOKITAU Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES:	CARR, SACKVILLE & R D NICHOLSON JJ
DATE:	16 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Non-constitutional grounds

1. This is an appeal from a judgment of Cooper J delivered on 28 October 1999.  The effect of the judgment was to refuse an application for review of a decision of the Immigration Review Tribunal (“the IRT”) delivered on 22 April 1999.

2. The appellant’s circumstances are as follows.  He was born on 20 September 1956.  He entered Australia on 29 April 1992 on a visa which expired on 29 July 1992.  His wife was born on 30 December 1957.  She entered Australia on a visa on 7 April 1985 which expired on 9 April 1985.

3. On 4 September 1998 the appellant lodged an application for a Change in Circumstance (Residence) Visa.  The family members referred to in the application were the appellant’s wife and their three children.  The three children had been born in Australia but were citizens of Tonga.  Their respective dates of birth were 5 February 1990, 3 February 1992 and 7 February 1996.  The basis of the application was that they had a “special need relative” in their eldest child born on the 19 April 1988, who had attained Australian citizenship in May 1998.

4. The application was refused.  The refusal was then reviewed by the IRT, which affirmed the decision to refuse the grant the visa on the basis that the applications were not lodged within the 12 month period required by clause 3002 of Schedule 3 of the Migration Regulations.

5. The appeal to Cooper J was likewise unsuccessful in disclosing any error of law in the reasoning of the IRT.  In his reasons, Cooper J referred to twelve grounds of appeal before him.  He said that these grounds were substantially identical with the grounds argued in Fakatava v Minister for Immigration & Multicultural Affairs [1999] FCA 1477. Where the grounds had been dealt with by him in Fakatava, he relied on his reasons in that matter for rejecting the grounds in the present matter.  He also dealt with some additional grounds not present in Fakatava.

6. Here the grounds of appeal before us are seven in number.  They are identical to the grounds of appeal in an appeal to us in relation to Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118. We have today given judgment in that appeal dismissing the non-constitutional grounds.

7. Because of the identity of the grounds of appeal with those in Fakatava, it is appropriate that we should now state that, in reliance on the reasons there stated, we find no error of law disclosed by the non-constitutional grounds of appeal before us on this appeal.

8. The constitutional grounds will be dealt with in the same manner as stated in Fakatava.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated:             16 February 2000

Mr L Fouda assisted the appellant, by leave.

Solicitor for the Respondent:	Australian Government Solicitor (Mr M Allatt appeared)
Date of Hearing:	16 February 2000
Date of Judgment:	16 February 2000