Faleafa v Minister for Immigration & Multicultural Affairs [1999] FCA 1091

FEDERAL COURT OF AUSTRALIA

Faleafa v Minister for Immigration & Multicultural Affairs [1999] FCA 1091 HIVA FALEAFA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 389 OF 1999 THE HON JUSTICE MARCUS EINFELD AO SYDNEY 2 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 389 OF 1999

BETWEEN: HIVA FALEAFA

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: THE HON JUSTICE MARCUS EINFELD AO

DATE: 2 AUGUST 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of Tonga who was born on 22 October 1956 and who entered Australia on 31 October 1995 on a visa which expired three months later. It appears that during 1995 and 1996, through a combination of regulatory provisions that then applied which left open an opportunity which had not been intended, a way was found for about 2700 people living in Australia to obtain asylum as a consequence of offshore applications made on their behalf. The loophole was closed at the end of 1996 and has not been available since. The applicant's application which is presently before the Court was made on 21 May 1997. It was rejected by the delegate of the Minister on 16 April 1998 and that rejection was confirmed by a decision of the Immigration Review Tribunal on 15 April 1999. That decision was that the applicant was not entitled, at the time she made her application, to the visas which were obtained by the 2700 people in 1995 and 1996.

2 The applicant now seeks to overturn the decision of the Tribunal. The matter has had a number of unsatisfactory features, not least the fact that the affidavit which has been filed in support of the application for review was sworn by Mr Fonua who says he is a friend of the applicant and an interpreter of the Tongan language. His affidavit is, to all intents and purposes, entirely inadmissible on the ground that he has no first hand knowledge of the material contained in it, but perhaps more importantly because it has no relevance at all to the proceedings. However, the case is determinable without having to worry about evidentiary difficulties because through Mr Fonua, the applicant concedes that the decision of the Tribunal is correct. The Court has no power to overturn a decision of the Tribunal when the moving party agrees that the decision is literally and legally unchallengeable.