Candappa v Minister for Immigration
[2007] FMCA 1213
•26 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CANDAPPA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1213 |
| MIGRATION – Migration Review Tribunal – salvation temporary visa – applicant arrived after 1993 – application bound to fail. |
| First Applicant: | ROHAN CHRISTOPER CANDAPPA |
| Second Applicant: | PUWAKDANDAWE NARAYANAGE IRENE CANDAPPA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 20 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 26 June 2007 |
| Date of last submission: | 26 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2007 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Ms Jayasinghe |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant to pay the respondent fixed at $1895.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 20 of 2007
| ROHAN CHRISTOPER CANDAPPA |
First Applicant
| PUWAKDANDAWE NARAYANAGE IRENE CANDAPPA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This is an application under the rules seeking judicial review of a decision of the Migration Review Tribunal signed on 5 December 2006. The applicant sought a Sri Lankan temporary class TC visa on 22 September 1997 and the delegate of the Minister refused to grant the visa on 24 September 1997 and application was then made to review the delegate's decision in the MRT.
A condition of the subclass visa set out in clause 435.213 is that the applicant arrive in Australia on or before 1 November 1993. In this case there is no dispute that the applicant did not arrive in Australia on or before 1 November 1993, but rather the applicant raises issues and that may be a foundation for a protection visa as being the reason that he has made application. The applicant in his judicial review application seeks review on the grounds that there was jurisdictional error, because of a failure to consider risk that he may suffer from the Tamil Tigers as a result of his ethnicity and other matters relating to protection visas.
It appears to me on the material that this is not an arguable case. This was not the basis of the visa category concerned. Whether or not the applicant has a proper basis for a protection visa is something to be the subject of a protection visa application to the Minister and a decision on that visa category. The visa category that he has applied for is simply not available to him on the facts that are agreed: that is, on the basis that he did not arrive in Australia before 1 November 1993.
He can never satisfy this condition of the visa category and therefore can never succeed in the application for this class of visa. In these circumstances the application must be considered futile. A proposition with which the applicant agreed in discussion from the bar table. In the circumstances I therefore dismiss the current application.
In this matter the applicant has been entirely unsuccessful. The scale fee is $2500 for a matter that reaches this stage. The minister's lawyers seek $1895. I am satisfied that the quantum of the sum sought is reasonable in the circumstances given that the applicant has been wholly unsuccessful it appears appropriate that he pay the costs of the respondent.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Riethnuller FM
Associate: J.McLean
Date: 25 July 2007
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