Dasanayaka v Minister for Immigration - [2015] FCCA 2

FEDERAL CIRCUIT COURT OF AUSTRALIA

DASANAYAKA v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2

Catchwords:
MIGRATION – Application for extension of time – reasons for delay – consideration of substantive application.

Legislation:

Migration Act 1958 (Cth)

Applicant:

SAMITHA DASANAYAKA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 202 of 2014

Judgment of:

Judge McGuire

Hearing date:

8 September 2014

Date of Last Submission:

28 October 2014

Delivered at:

Melbourne

Delivered on:

5 February 2015

REPRESENTATION

Counsel for the Applicant:

Ms Costello

Solicitors for the Applicant:

Kabo Lawyers

Counsel for the First Respondent:

Ms Latif

Solicitors for the First Respondent:

Clayton Utz

ORDERS

That the application for an extension of time to bring an application for judicial review be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 202 of 2014

SAMITHA DASANAYAKA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

MIGRATION REVIEW TRIBUNAL

Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made 21 January 2012 not to grant the applicant a student visa (temporary) (class TU visa)(“the visa”).
The applicant also seeks an order for an extension of time to file this substantive application. The application in its original form was lodged on 6 February 2013 being some 10 months and nine days outside the prescribed time.
Both the application for extension of time and the application for judicial review are opposed.
Both the applicant and the second respondent were represented by counsel at the hearing before me.
The applicant now relies on an amended application filed 28 July 2014. He has filed, and I have read into evidence, his three affidavits of 6 February, 25 July and 5 September 2014. I have been provided with a document purporting to be a transcript of the hearing before the tribunal, annexed to an affidavit of Ashley Ngion, solicitor, and affirmed 28 July 2014. There has arisen some dispute as to the accuracy and context of the transcript and I have therefore been provided with and listened to the audio recording of those proceedings. I also have the benefit of written submissions from both counsel together with a comprehensive court book containing inter alia the Tribunal’s decision of 21 February 2013.

Background

The applicant is 27 years of age. He is a citizen of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 2
Decision Date: 5 February 2015

CaseChat Overview and Summary

In *Dasanayaka v Minister for Immigration*, the applicant, Mr Dasanayaka, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's decision to refuse to grant Mr Dasanayaka a visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was vitiated by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Mr Dasanayaka's application, thereby breaching the requirements of the *Migration Act 1958* (Cth) and the principles of administrative law.

Judge McGuire found that the delegate had failed to properly consider the applicant's submissions regarding his genuine and temporary intention to remain in Australia, a crucial factor in the visa assessment. The Court applied the principles of administrative law, particularly the requirement for decision-makers to undertake a proper consideration of all relevant material before them. The failure to engage with the applicant's evidence constituted a jurisdictional error.

Consequently, the Court quashed the Minister's decision to refuse the visa and remitted the matter to the Minister for redetermination according to law.

Orders