Tavalu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 419

FEDERAL COURT OF AUSTRALIA

Tavalu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 419 SILIA TAVALU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 861 of 2002 WILCOX, SPENDER and RYAN JJ 5 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 861 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SILIA TAVALU

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: 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 appellant pay the respondent's costs of the appeal. 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 861 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SILIA TAVALU

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX, SPENDER and RYAN JJ

DATE: 5 DECEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: 1 This is an appeal from a decision of Moore J given on 15 August 2002. 2 The notice of appeal sets out five grounds. Some of these are not intelligible. Some are plainly incorrect. For example, it is not correct to say that Moore J found that the delegate was not acting in good faith in making the decision. Nor does it appear that Moore J refused time to file and serve notices pursuant to s 78B of the Judiciary Act 1903. In any event, no constitutional question was raised. 3 When asked to elaborate on the grounds, the appellant was only able to say that she could not believe the Minister's decision was correct because he had refused to consider intervening in her case. The appellant also drew attention to the fact that the letter notifying the decision was not signed personally by the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"). 4 It seems to me these matters do not relate to any ground of appeal taken by the notice of appeal; nor indeed, any ground that would be available to the appellant. 5 In my opinion this case is covered by s 476(2) of the Migration Act 1958. It appears the relevant decision was made by the Minister. Consequently the jurisdiction of the Court is excluded. I also draw attention to s 351(7) of the Act which provides that the Minister does not have a duty to consider whether to exercise the power under section 351(1). 6 In my view the appeal must fail and the appropriate order is the appeal be dismissed with costs.