Tuita v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 145

FEDERAL COURT OF AUSTRALIA

Tuita v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 145 HENELE TUTUTAU TUITA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Q197 OF 2003 CARR, EMMETT & GYLES JJ 27 FEBRUARY 2004 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q197 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: HENELE TUTUTAU TUITA

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: CARR, EMMETT & GYLES JJ

DATE OF ORDER: 27 FEBRUARY 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. 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 Q197 OF 2003

BETWEEN: HENELE TUTUTAU TUITA

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: CARR, EMMETT & GYLES JJ

DATE: 27 FEBRUARY 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT CARR J: 1 I agree with the orders proposed by Emmett J and with his Honour's reasons.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of Justice Carr.

Associate: Dated: 8 June 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q197 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: HENELE TUTUTAU TUITA

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: CARR, EMMETT & GYLES JJ

DATE: 27 FEBRUARY 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT

EMMETT J: 2 The appellant is a national of Tonga. On 1 August 2003 he applied for a Bridging E (Class WE), Subclass 050 Bridging (General) Visa under the Migration Act 1958 (Cth) ('the Act'). On 5 August 2003 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), refused to grant a visa. On 6 August 2003, the appellant lodged an application with the Migration Review Tribunal ('the Tribunal') for review of the decision of the delegate. On 14 August 2003, the Tribunal affirmed the decision to refuse to grant a visa. 3 On 5 September 2003, the appellant filed an application to the Court for relief under s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act'). The application claimed an order that the Court remit the matter to the Minister for reconsideration according to law and any other order that the Court might think appropriate. The grounds were stated as follows: '1. The proceeding involved s 78B of the Judiciary Act 1903. 2. The application involved s 51(xxvii) of the Commonwealth Constitution. 3. That the respondent had breached the UN Declaration of the Rights of the Child which involved s 75 of the Constitution with original jurisdiction of the High Court in all matters arising under any treaty. 4. The decision involved s 398 of the Judiciary Act 1903.' 4 It is manifest that the grounds do not justify the grant of any relief under s 39B of the Judiciary Act. The application does not, in fact, specify the decision in respect of which relief is sought. However, it is apparent that the application should be taken to refer to the decision of the Tribunal of 14 August 2003. 5 On 9 December 2003, a judge of the Court ordered that the application be dismissed with costs. His Honour gave oral reasons for that decision on that day. On 17 December 2003, the appellant filed a notice of appeal from the orders of the primary judge. The same relief is claimed in the notice of appeal as was claimed in the original application. The grounds of appeal stated in the notice of appeal are as follows: '1. That the judge erred in law and findings that the application involved a matter arising under the Constitution within the meaning of s 78B of the Judiciary Act 1903. 2. That the judge erred in findings that the respondent was not acting in good faith in the making of the decision. 3. That the judge erred in law and findings that the changes to Migration Act under ss 474, 475 and 476 involved issues of deep constitutional sensitivity affecting two basic principles that the rule required that any decision of government should be capable of being tested in a court of law. 4. That the judge erred in his judgement that the respondent had breached the UN Convention on the Rights of the involved s 75 of the Constitution. 5. That the appellant will file a Notice pursuant to s 78Bof the Judiciary Act 1903.'