Devadas v Minister for Immigration
[2016] FCCA 296
•10 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEVADAS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 296 |
| Catchwords: MIGRATION – Further ruling arising from possible interaction on Schedule 3 and cl.602.213(5) of the Migration Regulations 1994 – first respondent’s written submissions correct – application dismissed. |
| Legislation: Migration Act 1958, s.351 Migration Regulations 1994, sch.3, cl.602.213(5) |
| Sayadi v Minister Immigration and Border Protection [2015] FCCA 1235 Gurung v Minister for Immigration and Border Protection [2015] FCCA 1445 Kouweider v Minister for Immigration [2015] FCCA 3148 Singh v Minister for Immigration [2015] FCCA 1408 |
| Applicant: | SATHASIVAM DEVADAS |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1259 of 2014 |
| Applicant: | RAJALUXMI DEVADAS |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1319 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 24 November 2015 |
| Date of Last Submission: | 5 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 10 March 2016 |
REPRESENTATION
| Counsel for the Applicants: | In person |
| Solicitors for the Applicants: | Not applicable |
| Counsel for the First Respondent: | Ms Latif |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the Second Respondent be changed to ‘Administrative Appeals Tribunal’.
The Application is dismissed.
The Applicants pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1259 of 2014
| SATHASIVAM DEVADAS |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
MLG 1319 of 2014
| RAJALUXMI DEVADAS |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 24 November 2015, I issued reasons for judgment in this matter.
I also ordered that the parties file and serve written submissions relating to the matters raised in paragraphs 23-26 of the reasons for judgment I then published.
As I then observed, I found the interrelationship between cl.602.213(5) of the Migration Regulations 1994 (“the Regulations”) and its interaction with Schedule 3 somewhat difficult. I noted that pursuant to cl.3004 of Schedule 3, an applicant who ceased to hold a substantive visa after 1 September 1994 as a result of factors beyond their control and who met certain other criteria might be taken to be able to make the application that otherwise the applicants may not make in this case.
The first respondent’s written submissions submit that the finding made by the Tribunal that the applicants did not meet Schedule 3 criterion 3001 was dispositive. It is submitted that cl. 602.213(5) of the Regulations is such that an applicant must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005 in each instance, to the extent that they are applicable. It is submitted that this finding is the proper way in which to construe cl. 602.213(5).
Authorities finding that nonsatisfaction of Criterion 3001 is dispositive in respect of jurisdiction of cl.602.213 is referred to in the written submissions of the first respondent. I accept that the decision of Perram J in Sayadi v Minister Immigration and Border Protection [2015] FCCA 1235 at [15]-[18] is to this effect. Likewise, the decisions of Manousaridis J in Gurung v Minister for Immigration and Border Protection [2015] FCCA 1445 at [16], and his Honour’s further decisions in Kouweider v Minister for Immigration [2015] FCCA 3148 at [9]-[10] and Singh v Minister for Immigration (2015) FCCA 1408 at [9]-[12] are to the like effect.
It should be noted that the applicants filed written submissions on
5 February 2016 but these take the matter no further.
In the ultimate, my conclusions can be expressed shortly. Looking again at Schedule 3 and cl.602.213(5) I accept the first respondent’s submission that these are to be read as imposing a cumulative requirement in respect of the need to meet Schedule 3 to the extent that it applies.
Accordingly, as the first respondent submits, the Tribunal’s conclusion that Criterion 3001 was not met is indeed dispositive of the matter, and it follows that the applicants cannot succeed.
It therefore follows that the application must be dismissed with costs. Additionally, I will change the name of the second respondent to the Administrative Appeals Tribunal as the first respondent requests.
I would conclude, however, by saying that this is a case in which, on the materials as they stand, Mr and Mrs Devadas would seem to me to have strong, compelling compassionate grounds to support any application they make to remain in Australia. I would hope that the Minister would give consideration to exercising power in favour of the applicants in the event that they press any application pursuant to s.351 of the Migration Act 1958.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Date: 10 March 2016
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