Vo'Ifalelahi, S v Minister of State for Immigration, Local Government & Ethnic Affairs [1996] FCA 174

IN THE FEDERAL COURT OF AUSTRALIA) ) VICTORIA DISTRICT REGISTRY ) VG 252 of 1993 ) GENERAL DIVISION ) ON APPEAL FROM THE IMMIGRATION REVIEW TRIBUNAL CONSTITUTED BY MS PAMELA O'NEIL, PRESIDENT BETWEEN: SONASSI VO'IFALELAHI (Applicant) AND: MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS (Respondent) CORAM: Ryan J DATE: 21 March 1996 PLACE: Melbourne MINUTES OF ORDER

THE COURT ORDERS: 1. That the decision of the Immigration Review Tribunal of 26 May 1993 affirming the decision under review refusing the grant to Fisiilose Latupauu of a December 1989 (temporary) entry permit (Class 440) be set aside. 2. The matter be remitted to the Tribunal differently constituted to be determined according to law. 3. The respondent pay the applicant's costs such costs to be taxed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) VICTORIA DISTRICT REGISTRY ) VG 252 of 1993 ) GENERAL DIVISION ) ON APPEAL FROM THE IMMIGRATION REVIEW TRIBUNAL CONSTITUTED BY MS PAMELA O'NEIL, PRESIDENT BETWEEN: SONASSI VO'IFALELAHI (Applicant) AND: MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS (Respondent) CORAM: Ryan J DATE: 21 March 1996 PLACE: Melbourne REASONS FOR JUDGMENT RYAN J: This is an application by way of an appeal brought by the applicant ("the applicant sponsor") for the benefit of his step-sister, Ms Fisiilose Latupauu ("the principal applicant") from the decision of the Immigration Review Tribunal ("the Tribunal") given on 26 May 1993 whereby the Tribunal affirmed the decision under review refusing the grant of a December 1989 (temporary) entry permit (Class 440) within Reg.131A of the Migration (1989) Regulations ("the Regulations").

The Legislation So far as is relevant, Reg. 131A of the Regulations stipulates these criteria for the grant of a December 1989 (temporary) entry permit: 131A.(1) The following criteria are prescribed in relation to a December (temporary) entry permit: (a) the applicant for the entry permit was a prohibited non-citizen on or before 18 December 1989; (b) the applicant has not left Australia after 18 December 1989; (c) the applicant applies, in accordance with these Regulations, before 19 December 1993 for the entry permit; (d) on 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit: (i) the applicant has a genuine and continuing relationship as the spouse of an Australian citizen or of an Australian permanent resident; or (ii) the applicant is a dependent child of an Australian citizen or of an Australian permanent resident; or (iii)the applicant is an aged parent of an Australian citizen or of an Australian permanent resident and satisfies the balance of family test; or (iv) the applicant is: (A) an aged dependent relative; or (B) an orphan relative; or (C) a special need relative; or (D) a remaining relative within the meaning of regulation 9; of a settled Australian citizen or settled Australian permanent resident; or (v) there is any other compassionate ground for the grant of an entry permit, to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident; (e) if: (i) the applicant satisfies the criterion specified in paragraph (d) only by reason of having been, throughout the period referred to in that paragraph, a person referred to in subparagraph (d)(i), (ii) or (v); and