Arachchige v Minister for Immigration and Citizenship

[2007] FCA 1926

FEDERAL COURT OF AUSTRALIA

Arachchige v Minister for Immigration and Citizenship [2007] FCA 1926

NIHAL DHAMMIKA KODAGODA BAMMANNA ARACHCHIGE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID 803 OF 2007

BUDDIKA MELANI ABEYSINGHE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID 807 OF 2007

UPASIRI ACHCHIGE ABEYSINGHE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID 809 OF 2007

SUJATHA MALINI ABEYSINGHE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID 810 OF 2007

NORTH J

12 NOVEMBER 2007

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 803 OF 2007

BETWEEN:

NIHAL DHAMMIKA KODAGODA BAMMANNA ARACHCHIGE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	12 NOVEMBER 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused.

2.The applicant pay the first respondent’s costs, fixed at $1500.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 807 OF 2007

BETWEEN:

BUDDIKA MELANI ABEYSINGHE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	12 NOVEMBER 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused.  

2.The applicant pay the first respondent’s costs, fixed at $600.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 809 OF 2007

BETWEEN:

UPASIRI ACHCHIGE ABEYSINGHE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	12 NOVEMBER 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application for leave to appeal be refused.  

2.        The applicant pay the first respondent’s costs, fixed at $600.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 810 OF 2007

BETWEEN:

SUJATHA MALINI ABEYSINGHE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	12 NOVEMBER 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application for leave to appeal be refused.  

2.        The applicant pay the first respondent’s costs, fixed at $600.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 803 OF 2007

BETWEEN:

NIHAL DHAMMIKA KODAGODA BAMMANNA ARACHCHIGE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 807 OF 2007

BETWEEN:

BUDDIKA MELANI ABEYSINGHE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 809 OF 2007

BETWEEN:

UPASIRI ACHCHIGE ABEYSINGHE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 810 OF 2007

BETWEEN:

SUJATHA MALINI ABEYSINGHE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	12 NOVEMBER 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court are four applications which have been dealt with together because they raise the same issue.  Three of the applications are made by members of the same family and the fourth application is made by a separate individual.

2. The applications of Buddika Abeysinghe, Upasiri Abeysinghe and Sujatha Abeysinghe each relate to judgments of Federal Magistrate McInnis, delivered on 13 August 2007. They are respectively proceedings VID807 of 2007, VID809 of 2007 and VID810 of 2007. The applicants in VID809 and VID810 of 2007 are husband and wife and the applicant in VID807 of 2007 is their daughter. The fourth application, being VID803 of 2007 is made by Nihal Arachchige against a judgment of Federal Magistrate Riley, delivered on 23 August 2007. Before the federal magistrates, the first respondent, the Minister for Immigration and Citizenship, applied for summary dismissal on the ground that there was no reasonable prospect of successfully prosecuting the proceeding. In each case, the federal magistrate dismissed an application for review of a decision of the Migration Review Tribunal under rule 13.10(a) of the Federal Magistrates Court Rules2001. 

3. The orders made under this rule are interlocutory orders so that each applicant requires leave to appeal against the judgment of the respective federal magistrate.  However, each applicant filed a notice of appeal.  Although the first respondent had filed notice of objection to competency in each of the matters, Ms Miller, who appeared on behalf of the first respondent, did not object to the Court dealing with each of the applications as if they were oral applications for leave to appeal, and did not oppose an application for extension of time to make each application.  Therefore, each of the applications will be dealt with as if they were applications for leave to appeal made within time. 

4. Each of the applicants applied for a subclass 435 visa. In order to qualify for the visa, the applicant must satisfy clause 435.213 of the Migration Regulations 1994, which provides:

   The applicant entered Australia on or before 1 November 1993 as the holder of an entry permit or entry visa which had effect as if it were an entry permit.

5. Each of the applicants conceded before the tribunal that they had first entered Australia after 1 November 1993.  Consequently, the tribunal in each case affirmed the decision of the delegate that the applicant was not entitled to the grant of the visa.  The judgments of the federal magistrates upheld the conclusion of the tribunal.  The federal magistrate held in each case that the applicant failed to satisfy this condition necessary for the grant of the subclass 435 visa.  As there was no legal argument which would avail the applicants to reverse the decisions of the tribunal, summary judgment was given against the applicants.

6. Whether leave to appeal should be granted by this Court depends upon whether the judgments of the federal magistrates were attended by sufficient doubt that they should be considered by the appeal court, and whether injustice would result if leave were refused, supposing the decision at first instance was wrong:  Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

7. The notices of appeal in proceedings VID807, VID809 and VID810 of 2007 are in the same form.  They assert that the tribunal decision was made without jurisdiction or is affected by an error of jurisdiction.  The particulars assert that the tribunal should have exercised its discretion and taken into account the current situation in Sri Lanka.  It was further asserted that the tribunal completely disregarded all the information provided by the particular applicant.  In relation to proceeding VID803 of 2007, the grounds of appeal were that the facts of the application were totally ignored, there was a denial of natural justice, and irrelevant facts were taken into consideration.  None of these grounds address the underlying legal problem that the applicant simply did not qualify under the terms of subclause 453.213. 

8. At the hearing of the appeal, the applicants were not represented but were assisted by a Singhalese interpreter.  The daughter speaks English and addressed the Court in English.  The other applicants made short oral submissions in Singhalese.  The points made by the applicants in oral argument were that they have now been in Australia for over ten years as have been law-abiding residents.  The situation in Sri Lanka was said to be intolerable for them, partly for the reason that they have been away for so long, but also because of the volatile situation in Sri Lanka.  Mr Abeysinghe also argued that the visa condition in question in this case was unfair because it disadvantaged people who arrived from Sri Lanka in the years between 1993 and 1997.

9. None of the arguments raised by the applicants provide an answer to the reasons given by the federal magistrates.  The federal magistrates were correct in concluding that the applicants could not succeed in their challenge to the decision of the tribunal.  Consequently, there is insufficient doubt to warrant the decision of the federal magistrates being considered by the appeal court, and leave to appeal must be refused in each case.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        6 December 2007

Counsel for the Applicants:	In person
Counsel for the Respondent:	Ms Miller
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 November 2007
Date of Judgment:	12 November 2007