Abeysinghe v Minister for Immigration
[2007] FMCA 1400
•13 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABEYSINGHE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1400 |
| MIGRATION – Subclass 435 temporary visa – whether jurisdictional error – application dismissed. |
| Migration Regulations 1994 Federal Magistrates Court Rules 2001, r.13.10 Migration Act 1958, ss.48, 359A |
| Dirckze & Ors v Minister for Immigration & Anor (No. 2) [2007] FMCA 743 Tran v Minister for Immigration & Anor [2006] FMCA 961 |
| Applicant: | BUDDIKA MELANI ABEYSINGHE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File numbers: | MLG 776 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 13 August 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 13 August 2007 |
REPRESENTATION
| Applicant: | In person |
| 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.
That the Applicant pay the First Respondent's costs fixed in the sum of $1,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 776 of 2007
| BUDDIKA MELANI ABEYSINGHE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The application before the Court seeks judicial review of a decision of the Migration Review Tribunal ("the Tribunal") dated 19 April 1997. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent who had found that the visa Applicant was not entitled to the grant of a Sri Lankan (Temporary) (Class TT) visa.
Under the hearing “Discussion and Findings” the Tribunal noted that the delegate had refused to grant the visa because "he found the visa applicant did not satisfy clause 435.213” of the Migration Regulations 1994 (“the Regulations”). Clause 435.213 of the Regulations as it applied 435.213 and which has been set out by the Tribunal as follows:
“The applicant entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa which had effect as if it were an entry permit.”
The Tribunal records that:
“… the visa applicant first entered Australia on 6 January 1997 and the visa applicant therefore fails to satisfy clause 435.213. The Tribunal ha no discretion to take into account the current circumstances in Sri Lanka.”
The First Respondent in this application, and also in the applications of this Applicant's father in application MLG 775 of 2007 and this Applicant's mother in application MLG 584 of 2007, has sought an order, pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 ("the Rules"), that the application be summarily dismissed on the ground that it has no reasonable prospect of success.
In this application, and in others, the First Respondent has relied upon an affidavit of the First Respondent's solicitor, Ms Miller, which in the present case appears to have been sworn on 13 July 2007 and provides relevant background details, which do not appear to be in dispute.
When the application was called on for hearing this day it was noted that this Applicant's mother and father were also present, and I permitted them to remain at the bar table and to be assisted by an interpreter. I then permitted the Applicant to make submissions on her behalf in her application and for those submissions to then be adopted by her mother and father in their applications and for the First Respondent likewise to make submissions in this application which were adopted in relation to the other applications.
Accordingly, as the submissions in each application were substantially similar, it is convenient, in my view, that I should deliver this judgment and that the reasoning in this judgment should, apart from some adjustment in terms of the background details, apply with equal force, in terms of its reasoning, to applications MLG 775 of 2007 and MLG 584 of 2007, for reasons which will become apparent.
By way of background in this application, it is noted that the Applicant had arrived in Australia as the holder of a Tourist (Class TR) visa (subclass 676) on 6 January 1997. I note that this Applicant was born on 11 May 1982 and there is no dispute that she is a national of Sri Lanka.
It is also perhaps noteworthy that this Applicant therefore, having regard to her date of birth, has remained in Australia from her early teenage years and indeed has remained here now for over a decade.
By way of further background, it is noted that the Applicant on 4 September 1997 applied for a Sri Lankan (Temporary) (Class TT) visa, (subclass 435), which I shall refer to as the "Sri Lankan visa". On the same day of the application a delegate of the First Respondent refused to grant the Sri Lankan visa.
On 30 June 2006 the Applicant was sent a letter renotifying her of the delegate's decision. That letter stated the original decision was no longer available. There is no dispute in relation to the renotification procedure which has been followed in this case and which I note is almost identical to the procedure that was followed by the First Respondent in another matter considered by this Court, namely Dirckze & Ors v Minister for Immigration & Anor (No. 2) [2007] FMCA 743 ("the Dirckze decision"). In the Dirckze decision a similar renotification process occurred.
In the present case the Applicant on 18 July 2006 filed with the Tribunal an application for review of the delegate's decision. It should be noted that there is no issue taken in relation to what would otherwise appear to be the late filing of that application. Indeed it is noted that the Applicant, along with her mother and father, attended a hearing before the Tribunal on 20 March 2007 and gave evidence.
It is also noted from the Tribunal decision that the Applicant, on 15 March 2007, had lodged a submission before the Tribunal, which I note the Tribunal records did not dispute the assertion that the Applicant had arrived in Australia after 1 November 1993. In its decision the Tribunal relevantly states the following:
“… She submitted, however, that she should be granted a subclass 435 visa because the current situation in Sri Lanka, (a resurgence of civil strife and violence) makes it unsafe for her to return. She referred to a number of newspaper reports, press releases and reports by Amnesty International in support of her claims. She asked the Tribunal to not affirm the delegate's decision to refuse to grant the visa.”
The Tribunal then refers to the hearing which was conducted and then also relevantly refers to a letter forwarded to this Applicant, pursuant to s.359A of the Migration Act 1958 ("the Migration Act"), inviting the Applicant to comment specifically on Departmental records indicating that the Applicant had first entered Australia on 6 January 1997. That letter has been reproduced in the affidavit of Ms Miller referred to earlier in this judgment.
It also should be noted in the affidavit of Ms Miller that on 6 May 1997 the Applicant applied for a protection visa. A delegate of the First Respondent refused to grant that visa on 22 January 1998. That delegate's decision was affirmed by the Refugee Review Tribunal on 8 May 2006. On 2 June 2006 an application was filed in this Court seeking judicial review of the Refugee Review Tribunal's decision and on 30 June 2006 the Court dismissed the application.
On 30 October 1998 the Applicant's mother applied for a Change in Circumstance (Residence) (Class AG) visa, (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. On 9 April 1999 the Tribunal affirmed the delegate's decision.
On 24 June 2002 the Applicant's father applied for a Close Ties, Special Eligibility (Residence) (Class AO) visa, (subclass 832). The Applicant in this application was included in that application as a secondary Applicant. On 28 June 2002 a delegate of the First Respondent decided that the application was invalid, pursuant to s.48 of the Migration Act.
It is relevant to set out that history as appears in the affidavit material and which is not disputed. To understand the background, to what ultimately is an extremely narrow issue, arising, as it does, from the finding of fact not disputed by the Tribunal that the Applicant had arrived in Australia after 1 November 1993, it is clear from the Tribunal decision that it affirmed the delegate's decision based upon a conclusion that the Applicant did not meet the criteria of clause 435.213 of the Regulations.
This Court on a previous occasion has had cause to consider the relevant law which applies with equal force in this application. It did so in the Dirckze decision, to which reference was made earlier as follows at [6-11]:
“6.However, it is appropriate in considering this application to note, as submitted by the First Respondent, the history of the subclass 435 visa. Those visas were introduced in 1990 as entry permits for temporary visitors from Sri Lanka who had arrived lawfully in Australia under one of several different classes of other temporary permits. They were introduced by what was then reg.119G of the Regulations as part of what is described by the First Respondent as "the Australian government's humanitarian program".
7.Under that program temporary arrangements were made for persons lawfully in Australia who, in the then government's view, were unable to return or ought not return to their home country because of, for example, internal conflict in their country of origin. There is no dispute that arrangements were made for the issue of subclass 435 visas in circumstances arising out of what could be considered to be civil conflict and unrest that existed in Sri Lanka in 1990. It is otherwise not necessary to further consider the nature of the subclass 435 visas which were granted.
8.It is, however, important to note that on 13 June 1997 the then Minister for Immigration and Multicultural Affairs announced a new category of permanent residency visas to be created for citizens of various countries, including, relevantly, citizens of Sri Lanka who had arrived lawfully in Australia on or before 1 November 1993 and who had resided in Australia for 10 years.
9.It was decided that eligible Applicants would be granted further temporary residence under subclass 850 resolution of status (temporary) visas available to Sri Lankans who had arrived in Australia on or prior to 1 November 1993 or permanent residency under the permanent subclass 851 resolution of status visa (which applied to holders of subclass 435 visas who satisfied the requirements for permanent residency which included 10 years residence in Australia).
10.It is significant to note that on 30 June 1997 the Migration Regulations (Amendment) Statutory Rule No 184 ("SR184") changed the eligibility for a subclass 435 visa, requiring entry into Australia before 1 November 1993. On 1 October 1997 the Migration Regulations (Amendment) Statutory Rule No 279 ("SR279") was also announced in respect of subclass 850 and 851 visas.
11.It is noted that in the First Respondent's contentions it is claimed that the introduction of SR184 was "to resolve the status of the Sri Lankan subclass 435 visa holders so that they would be considered lawful prior to the introduction of the subclass 850 and 851 visas". It was submitted that as subclass 850 and 851 visas commenced on 1 October 1997, it was necessary to provide for the existing subclass 435 visas which were due to expire on 31 July 1997 to be extended further to 31 July 1998.”
The reasoning of the Court in that decision applies with equal force to the present application.
In my view, a proper reading of clause 435.213 of the Regulations does not permit the Tribunal, nor indeed this Court, to have regard to the issues, which I accept are no doubt genuinely relied upon and raised by the Applicant, concerning humanitarian issues current in Sri Lanka, or indeed issues which were evident some years ago.
The development of what I describe as the Sri Lankan visa and the introduction of the cut‑off time, being 1 November 1993, makes it clear that the Tribunal, as a matter of law in its decision, as the Tribunal itself stated, having regard to the facts which I have set out in this judgment, ultimately had "no alternative but to affirm the decision under review". In my view, the Tribunal acted appropriately according to law and I can determine no error which has been made by the Tribunal in reaching its decision.
In the application filed by the Applicant on 7 June 2007 it is argued that the Tribunal:
“… should have exercised its discretion and taken into account the current situation in Sri Lanka. The Tribunal has completely disregarded all the information I provided.”
Whilst the Court can appreciate the concern expressed by the Applicant set out in those particulars subjoined to the grounds of the application, they do not, in my view, constitute a proper basis upon which the Court should allow the application, as I am satisfied for the reasons given that there is no error committed by the Tribunal in its decision in relation to this particular application.
The First Respondent has, accordingly, made application in its amended response for this application to be dismissed, pursuant to r.13.10 of the Rules, on the grounds that there is no reasonable prospect of success. For the reasons given, I agree that that is the appropriate conclusion, having regard to the relevant test to be applied in a matter of this kind. I apply the principles which this Court had referred to in the matter of Tran v Minister for Immigration & Anor [2006] FMCA 961 in reaching the decision that in this case it is appropriate for the application to be dismissed, pursuant to r.13.10 of the Rules.
It follows, for the reasons given, that the orders in this application will be as follows in the orders.
(1)Pursuant to r.13.10 of the Federal Magistrates Court Rules 2001, the application be dismissed.
(2)That the Applicant pay the First Respondent's costs fixed in the sum of $1,000.00.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 13 August 2007
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