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

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.

3                     The basic case brought by the applicant is based upon some general concept of fairness.  She suggests through Mr Fonua that she ought to have been given the same rights as were given to the other offshore applications for Australian residency in 1995 and 1996.  No such principle could apply.  Even if it should exist as a matter of morality, and I cannot see why it would, the Court is unable to make any orders which could bring it about.  The Court has no power to refer back to the Minister for special consideration a one-off case on moral or fairness grounds even if it felt that there was some manifest unfairness to the particular applicant.  For my own part I cannot see what unfairness exists in this case at all.  It might be thought that the 2700 people who did receive residency visas were fortunate in being able to take advantage of a loophole which had arisen, but that does not mean that those who were not able to take advantage of it were subjected to any injustice as a consequence.

4                     The applicant sought to issue a subpoena for the production of the departmental records as applied to the successful offshore applications in 1995 and 1996, but on a motion by the Minister the subpoena was set aside by a Deputy Registrar on 27 July on the basis that the information sought was oppressive and irrelevant.  Last week the applicant foreshadowed that she would like to file a motion for the review of the Deputy Registrar's decision.  Six days later when the hearing is fixed, no such application has been filed.  However, even if it had been filed and was before the Court, I could see no basis upon which such a review could have been granted.  In my view the Deputy Registrar was completely correct in holding that the production of these documents would have introduced into the case a complete irrelevance.  Whether, as Mr Fonua told me, the documents would be available to the department on the press of a computer button I do not know, but even if it were so and the documents were readily available and there was no cost involved in their production, I would have myself rejected the subpoena on the grounds that as there was no basis upon which any of the material sought could have been used or admitted into evidence to prove any relevant issue in the case, there could be no legitimate forensic purpose in its issue.

5                     Although the specific number of people involved is not particularly relevant, the Minister has not challenged the fact that a number of people did receive visas in the two specific years referred to in circumstances not materially different to those of this applicant, except as to time of application. Mr Fonua was kind enough to remind me that relevance was a matter for the trial judge and not for the appropriateness of a subpoena, but where it is conceded, as here, that the Tribunal has made no legal error at all, a subpoena to prove what is admitted is a waste of the Court’s time and an abuse of process.  Similarly to the Court, the Tribunal had no power to send back to the Minister for a further decision the question of whether in fairness Mrs Faleafa should have been given the same opportunity as the 2700 other people.  The Tribunal looked at the various regulatory provisions as applies to the type of visa which Mrs Faleafa has been seeking and concluded, in what is not now said to be an incorrect decision, that she did not qualify for the issue of the visa.  For those reasons, the subpoenaed documents could not have made a contribution to an alternative decision and would not have added any fact to the case which would have been necessary to prove. 

6                     As the Tribunal's decision is not challenged by the applicant, there is no power in the Court to overturn it.  On the contrary, the only option available to the Court is to dismiss it.  The application is dismissed.

[AFTER DISCUSSION]

7                     In this case it seems to me appropriate that the Minister's application for costs should be granted.  This case has never had any merit in it whatsoever, as has been explained to the applicant through Mr Fonua on previous occasions both by the Court and apparently in conversations with the Minister's lawyers.  As has been said on other occasions, the Court is in some circumstances reluctant to grant costs against a person who has some arguability about the claim even though it might ultimately fail.  But where a case is being fought on manifestly unavailable arguments, the Minister is perfectly entitled, as it seems to me, to ask for costs and in my opinion the Court should grant them even if they are unlikely to be paid.

8                     The application is dismissed with costs.

Associate:

Dated:              2 August 1999