Abeysinghe v Minister for Immigration

[2007] FMCA 1401

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABEYSINGHE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1401

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: UPASIRI ACHCHIGE ABEYSINGHE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 775 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

1. Pursuant to r.13.10 of the Federal Magistrates Court Rules 2001, the application be dismissed.

2. 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 775 of 2007

UPASIRI ACHCHIGE ABEYSINGHE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The Applicant in this application, MLG 775 of 2007, is the father of the Applicant in application MLG 776 of 2007 and the husband of the Applicant in application MLG 584 of 2007.  The Applicant in this application seeks judicial review of a decision of the Migration Review Tribunal ("the Tribunal") dated 19 April 2007.  In that decision the Tribunal affirmed the decision of a delegate of the First Respondent of finding that the Applicant is not entitled to the grant of a Sri Lankan (Temporary) (Class TT) visa.  

2. The background to this application is set out in an affidavit of the solicitor for the First Respondent sworn 13 July 2007.  In that background it is made clear that the Applicant had arrived in Australia on 10 September 1995 as the then holder of a Tourist (Class TR visa) (subclass 676).  On 23 October 1995 and 30 August 1996 the Applicant was granted a Sri Lankan (Temporary) (Class TT) visas.

3. On 20 March 2007 the Applicant attended a hearing before the Tribunal and gave evidence. Again it is not disputed that the Tribunal forwarded to the Applicant a letter, pursuant to s.359A of the Migration Act 1958 ("the Migration Act"), inviting the Applicant to comment on department records indicating the Applicant first entered Australia on 10 September 1995. 

4. In a response received by the Tribunal to that letter it was acknowledged that the Applicant had arrived in Australia on 10 September 1995. Affirming the delegate's decision, the Tribunal, in this application, noting the appropriate clause, further noted that the Applicant first entered Australia on 10 September 1995 and was satisfied the Applicant then failed to satisfy clause 435.213 of the Migration Regulations 1994 (the Migration Regulations).

5. In this application it is further noted that on 21 December 1995 the Applicant applied for a protection visa and that on 5 September 1996 a delegate of the First Respondent refused to grant the Applicant a protection visa.  That decision was affirmed by the Refugee Review Tribunal on 18 December 1996.  An application was filed in this court for review of the Refugee Review Tribunal's decision on 16 January 1997 and that application was dismissed, I understand, from the affidavit material, by consent on 26 May 1997.

6. On 5 April 2004 the Applicant applied to the High Court for an order nisi in relation to the Refugee Review Tribunal's decision.  On 13 July 2004 the High Court remitted that matter to the Federal Court.  On 21 September 2004 the Federal Court transferred the matter to this court and on 13 July 2005 this court dismissed the application.  On 15 December 2005 Heerey J of the Federal Court refused leave to appeal from the judgment of this court. 

7. On 30 October 1998 the Applicant's wife applied for a Change in Circumstance (Residence) (Class AG) (subclass 806).  The Applicant in this application was included in that application as a secondary Applicant.  On 31 December 1998 a delegate of the First Respondent refused to grant a change in circumstance visa and on 9 April 1999 the Tribunal affirmed the delegate's decision. 

8. It is also noted in this application that on 24 June 2002 the Applicant applied for a Close Ties, Special Eligibility (Residence) (Class AO) visa, (subclass 832) and that on 28 June 2002 a delegate of the First Respondent decided the application was invalid, pursuant to s.48 of the Migration Act.

9. I have deliberately set out the background circumstances of this application as they reveal in clear terms that the decision delivered this day by this court in application MLG 776 of 2007 applies with equal force to this application, for the reasons stated in that application. 

   
   

   I therefore do not propose re‑stating the reasons but simply apply and adopt the reasoning in that application to this application and, for the reasons given, in my view, it is appropriate that the following orders be made in this application.

   (1)Pursuant to r.13.10 of the Federal Magistrates Court Rules 2001, the application be dismissed.

   (2)The Applicant pay the First Respondent's costs fixed in the sum of $1,000.00.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  13 August 2007