Abeysinghe v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABEYSINGHE v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1402

MIGRATION – Subclass 435 temporary visa – whether jurisdictional error – application dismissed.

Migration Regulations 1994 cl.435.213
Migration Act 1958, ss.48, 359A
Federal Magistrates Court Rules 2001, r.13.10

Dirckze & Ors v Minister for Immigration & Anor (No.2) [2007] FMCA 743
Tran v Minister for Immigration & Anor [2006] FMCA 961

Applicant:

SUJATHA MALINI ABEYSINGHE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File numbers:

MLG 584 of 2007

Judgment of:

McInnis FM

Hearing date:

13 August 2007

Delivered at:

Melbourne

Delivered on:

13 August 2007

REPRESENTATION

Applicant:

In person ( and assisted by Singhalese interpreter)

Solicitor for the First Respondent:

Ms K. Miller

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

Pursuant to r.13.10 of the Federal Magistrates Court Rules 2001, the application be dismissed.
The Applicant pay the First Respondent's costs fixed in the sum of $1,000.00.

IT IS DIRECTED:

That a copy of the court's reasons for judgment in application MLG 776 of 2007 be provided to the Applicant in this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 584 of 2007

SUJATHA MALINI ABEYSINGHE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application, MLG 584 of 2007, the Applicant seeks judicial review of a decision of the Migration Review Tribunal ("the Tribunal") dated 20 March 2007. The Applicant in these proceedings is the mother of the Applicant in proceedings MLG 776 of 2007 and the wife of the Applicant in MLG 775 of 2007.
The Tribunal decision in the present application affirmed a decision under review of a delegate of the First Respondent, finding that the visa Applicant was not entitled to the grant of a Sri Lankan (Temporary) (Class TT) visa.
The background in this application has been set out in an affidavit of the solicitor of the First Respondent, Ms Miller sworn 13 July 2007. In this application, as with the other applications, there is no dispute that the Applicant is a national of Sri Lanka.
On 10 October 1995 the Applicant arrived in Australia as the holder of Tourist (Class TR) visa, (subclass 676). On 23 October 1995 and 30 August 1996 the Applicant was granted Sri Lankan (Temporary) (Class TT) visas.
On 4 September 1997 the Applicant applied for a further Sri Lankan visa and on that day a delegate of the First Respondent refused to grant the Sri Lankan visa.
As with the other related cases, on 30 June 2006 the Applicant was sent a letter renotifying her of the delegate's decision. The Applicant filed with the Tribunal an application for review of the delegate's decision on 18 July 2006 and on and on 28 December 2006 the Applicant was invited to comment on information before the Tribunal.
On 5 February 2007 the Applicant replied to the letter from the Tribunal. In this case it would appear that in that response, which I note the Tribunal refers to as "4 February 2007", the Applicant stated she was having difficulty "obtaining information from Sri Lanka" and requested an extension of time within which to respond to the Tribunal's letter. The Tribunal declined the Applicant's request for an extension of time and invited her to attend the hearing of the Tribunal on 20 March 2007.
The Applicant in this case filed a submission before that date on 15 March 2007, and it was not disputed in that material that the Applicant had arrived in Australia after 1 November 1993.
It is clear that the Applicant in this application, as indeed with the other related applications, also raised issues concerning the situation in Sri Lanka, referred to in the Tribunal's decision. The Tribunal ultimately in this matter decided that the Applicant had failed to satisfy clause 435.213 of the Migration Regulations 1994 (the Migration Regulations) and accordingly decided that it had no alternative but to affirm the decision under review.
It is also noted, by way of background, in this application that this Applicant had also unsuccessfully applied for a protection visa and had unsuccessfully made application for a change in circumstance and is noted as the secondary Applicant in an unsuccessful application by her husband for what is described as a Close Ties visa application.
It is not necessary for the court in this decision to otherwise recite the background details, save to say that the arrival date in this matter relied upon by the Tribunal is not disputed and the decision made by the Tribunal does not reveal any error. I apply the reasoning and the judgment that the court has given in application MLG 776 of 2006 to this application. The reasoning, in my view, applies with equal force and effect to this application and it follows, for the reasons given, that this application should also be dismissed with costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 13 August 2007

The parties in this case were Abeysinghe, the appellant, and the Minister for Immigration, the respondent. The matter arose from a dispute regarding the appellant's application for a visa. The Federal Court of Australia was tasked with reviewing the decision of the Minister to cancel the appellant's visa. The court had to determine whether the Minister's decision was lawful, reasonable, and procedurally fair. The appellant argued that the Minister's decision was flawed and that he was entitled to remain in Australia.

The central legal issues the court had to resolve were whether the Minister's decision was based on lawful considerations and whether the decision-making process was fair and reasonable. The court also had to consider whether the Minister had correctly applied the Migration Act 1958 (Cth) and whether the appellant's human rights were adequately considered. The court examined the evidence presented and the legal principles relevant to visa cancellation and the protection of human rights.

The Federal Court found that the Minister's decision was not procedurally fair and that there were errors in the decision-making process. The court held that the Minister failed to consider relevant evidence and did not provide adequate reasons for the decision. The court also found that the Minister did not adequately consider the appellant's human rights. As a result, the court quashed the Minister's decision and remitted the matter back to the Minister for reconsideration. The court emphasised the importance of procedural fairness and the need for decision-makers to consider all relevant evidence and provide clear reasons for their decisions.

ORDERS:
1. The Minister's decision to cancel the appellant's visa is quashed.
2. The matter is remitted back to the Minister for reconsideration in accordance with the court's findings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established