Arachchige v Minister for Immigration

[2007] FMCA 1704

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ARACHCHIGE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1704

MIGRATION – Migration Review Tribunal – application dismissed pursuant to rule 13.10(a) on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim.

Federal Magistrates Court Rules 2001, r.13.10(a)

Applicant: NIHAL DHAMMIKA KODAGODA BAMMANNA ARACHCHIGE

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 203 of 2007

Judgment of: Riley FM

Hearing date: 23 August 2007

Date of last submission: 23 August 2007

Delivered at: Melbourne

Delivered on: 23 August 2007

REPRESENTATION

Advocate for the Applicant: In person

Advocate for the First Respondent: Ms M. Ngo

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for an order of review filed on 23 February 2007 be dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding.

2. The applicant pay the first respondent’s costs fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 203 of 2007

NIHAL DHAMMIKA KODAGODA BAMMANNA ARACHCHIGE

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for summary dismissal of an application filed on 23 February 2007 seeking judicial review of a decision of the Migration Review Tribunal handed down on 19 February 2007.

2. The applicant is a Sri Lankan national who arrived in Australia on 4 February 1996 on a subclass 676 visitor visa.  He was subsequently granted Sri Lankan temporary class TT visas on 6 February 1996 and 29 July 1996.  He applied for a protection visa on 30 June 1997 which was refused by a delegate of the first respondent on 15 July 1997.  He lodged another application for a protection visa on 24 May 2001 which again was refused. 

3. The applicant applied for a further Sri Lankan visa on 1 August 1997 and again on 8 December 1997.  Those applications were also refused respectively on 7 August 1997 and 9 December 1997.  There were some difficulties with the notification of the decisions in those cases and on 15 November 2006 the department renotified the applicant of the decision of 8 December 1997 refusing to grant a Sri Lankan visa.

4. The applicant then lodged an application on 20 November 2006 with the Tribunal.  On 28 December 2006 the applicant was invited to appear before the Tribunal to give evidence.  The Tribunal hearing was held on 30 January 2007.  The applicant attended that hearing and gave oral evidence to the Tribunal.  Among other things he told the Tribunal that he had first arrived in Australia on 4 February 1996. 

5. By its decision handed down on 19 February 2007, the Tribunal noted that one of the essential criteria for the visa that the applicant had applied for was that he had first arrived in Australia before 1 November 1993.  As the applicant did not first arrive in Australia until 4 February 1996, the Tribunal concluded that it was obliged to affirm the decision under review.

6. The application presently before the court is made under rule 13.10 of the Federal Magistrates Court Rules 2001. That rule provides that:

   The court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that

   (a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim. ...  

7. In my view the applicant in this case has no reasonable prospect of prosecuting the proceeding or claim in circumstances where he acknowledged to the Tribunal that he did not arrive in Australia until 4 February 1996 when the essential criteria for the grant of the visa that he seeks required that he entered Australia before 1 November 1993.

1. In the circumstances there will be an order that the application filed on 23 February 2007 be dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:  Melissa Gangemi

Date:  11 October 2007