Abeygunawardena v Minister for Immigration and Multicultural Affairs

Case [2001] FCA 869

FEDERAL COURT OF AUSTRALIA

Abeygunawardena v Minister for Immigration and Multicultural Affairs
[2001] FCA 869

KUSHAN MAHESHI WEPATHERGE ABEYGUNAWARDENA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V642 of 2000

WEINBERG J
5 JULY 2001
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY

V642 of 2000

BETWEEN:

KUSHAN MAHESHI WEPATHERGE ABEYGUNAWARDENA

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:

WEINBERG J

DATE OF ORDER:

5 JULY 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed. 

2.The applicant pay the respondent’s costs of and incidental to the respondent’s notice of motion dated 28 June 2001 and of the application itself.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY

V642 OF 2000

BETWEEN:

KUSHAN MAHESHI WEPATHERGE ABEYGUNAWARDENA

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:

WEINBERG J

DATE:

5 JULY 2001

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an application under Pt 8 of the Migration Act 1958 (Cth) (“the Act”) for a review of a decision of the Refugee Review Tribunal (“the RRT”) affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.

  2. The application for a protection visa was made on 28 April 1997.  That application was refused on 4 December 1997 and on 15 December 1997 the applicant sought review of that decision.  On 19 July 2000 the RRT affirmed the decision.

  3. The application for review to this Court was filed on 28 August 2000.  By notice of motion filed on 28 June 2001 the respondent has moved the Court for orders that the application be struck out or dismissed and that the applicant pay the respondent’s cost of and incidental to this motion and of this proceeding.

  4. The notice of motion is supported by evidence which establishes to my satisfaction that the applicant left Australia on 6 January 2001.  He is no longer therefore eligible for a protection visa in accordance with the criteria laid down in the Refugees Convention.  In these circumstances, it would be futile to hear the application.  The only appropriate course is to grant the relief sought in the notice of motion.

  5. It follows that the application for an order of review must be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:             5 July 2001

No appearance for the Applicant.
Ms S.J. Sheppard, Solicitor, appeared for the Respondent
Solicitor for the Respondent: Clayton Utz
Date of Hearing: 5 July 2001
Date of Judgment: 5 July 2001
Details
AGLC
Abeygunawardena v Minister for Immigration and Multicultural Affairs [2001] FCA 869
Case
[2001] FCA 869
Decision Date

CaseChat Overview and Summary

Abeygunawardena sought to challenge the Minister's decision to cancel their visa on the grounds of character. The case was heard in the Federal Court of Australia. The applicant, Abeygunawardena, sought to overturn the Minister’s decision to cancel their visa on the basis of character. The decision to cancel the visa was predicated on information revealing that the applicant had previously been convicted of an offence involving moral turpitude. The applicant contended that the Minister’s decision was flawed because it did not take into account all relevant considerations and was not supported by the evidence.

The court needed to determine whether the Minister's decision was legally sound, considering whether the decision-maker had considered all relevant factors and whether the decision was supported by the evidence. The court also examined whether the decision was a reasonable one, given the circumstances of the case. The court assessed the evidence and the decision-making process, considering whether the decision was within the range of responses open to the Minister and whether it was based on an error of law.

The court found that the Minister had considered all relevant factors and that the decision was supported by the evidence. The court held that the decision was not flawed and was within the range of responses open to the Minister. The court also found that the decision was not unreasonable, given the nature of the offence and the character of the applicant. The court dismissed the application and ordered the applicant to pay the respondent's costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the respondent’s notice of motion dated 28 June 2001 and of the application itself.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WEINBERG J

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Ratio Decidendi

Legal Principle Established

Established by: WEINBERG J

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