Vaitaiki v Minister for Immigration and Multicultural Affairs

[2000] FCA 5

FEDERAL COURT OF AUSTRALIA

Vaitaiki v Minister for Immigration & Multicultural Affairs [2000] FCA 5

VAITAIKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 335 of 1999

BURCHETT J
7 JANUARY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 335 of 1999

BETWEEN:	TEVITA VAITAIKI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BURCHETT J
DATE:	7 JANUARY 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is a motion for a stay following a decision of a Full Court which was delivered on 11 August last year dismissing an appeal from a decision of the Administrative Appeals Tribunal constituted by its President, Mathews J.  

2. Following the decision of the Full Court Mr Vaitaiki, an order for whose deportation had been affirmed by the Tribunal, lodged an application for special leave to appeal to the High Court of Australia.  That application seems to have been lodged on 9 September.  At that time, Mr Vaitaiki tells me, he was at liberty.  I should add that although the ground of deportation was the criminal deportation ground Mr Vaitaiki had completed his gaol sentence some considerable time ago and, indeed, the matter has been delayed by a succession of hearings and appeals. Mr Vaitaiki remained at liberty until he was arrested on either the 10th or the 12th - there seems to be some uncertainty - of December last.  He has been advised that he is to be deported on an aeroplane flight to Tonga leaving Sydney at 2.15pm next Tuesday. 

3. Unfortunately, little has been done about the application for special leave.  Mr Vaitaiki tells me that it is difficult to do much in prison, but of course he was not in prison for a substantial period before and after the lodgment of the application for special leave.  He has appeared before me in person.

4. In the reasons for judgment of the Full Court, Hill J, who presided, agreed, as did Whitlam J, with reasons given by Katz J.  However, Hill J added for himself that he was conscious of the very significant importance of the appeal to the appellant, and he was also conscious of the difficulty Mr Vaitaiki had, as an unrepresented person, in arguing an appeal in the Full Court.  His Honour had, he said, read very carefully the judgment of the learned President with a view to seeing whether some legal error was to be found in it.  His Honour was unable to detect any error of law in her Honour's decision. 

5. It seemed to me, on reading the reasons for judgment prepared by Hill and Katz JJ, that there was nothing in this case which suggested any likelihood at all, or, indeed, any real possibility, that the High Court of Australia would regard it as a case for a grant of special leave.  However, like Hill J, I took the view that the seriousness of the matter for Mr Vaitaiki and, indeed, for his family - perhaps especially for his children - demanded that I should give careful attention myself to the reasons for decision of Mathews J sitting as President of the Administrative Appeals Tribunal.  I have done that, and, having considered those reasons, I too am unable to detect any arguable ground upon which it could be contended that they show an error of law. 

6. That being so, I am confirmed in the conclusion that the application for special leave simply does not have any realistic prospects of success.  In that situation, I have no alternative but to dismiss the motion, and I do so.  In the circumstances, it is unnecessary to consider the form of relief which would be appropriate if relief were to be granted:  cf Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 at 184-185.

7. I order that Mr Vaitaiki be returned to his former custody.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.

Associate:
Dated:             10 January 2000

The applicant appeared in person
Solicitor for the Respondent:	Mr M Allatt of the Australian Government Solicitor
Date of Hearing:	7 January 2000
Date of Judgment:	7 January 2000