Dirckze v Minister for Immigration and Citizenship
[2007] FCA 1784
•22 November 2007
FEDERAL COURT OF AUSTRALIA
Dirckze v Minister for Immigration and Citizenship [2007] FCA 1784
GRAHAM JEREMY DIRCKZE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
VID 666 OF 2007MIDDLETON J
22 NOVEMBER 2007
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 666 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
GRAHAM JEREMY DIRCKZE
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
22 NOVEMBER 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be treated as an application for leave for an extension of time and for leave to appeal.
2.The application for an extension of time and for leave to appeal be dismissed.
3.The applicant pay the first respondent’s costs.
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 666 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
GRAHAM JEREMY DIRCKZE
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
MIDDLETON J
DATE:
22 NOVEMBER 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal from a decision of a Federal Magistrate delivered on 6 July 2007, dismissing an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 13 February 2007. The Tribunal had affirmed a decision of a delegate for the first respondent to refuse to grant the appellant a subclass 435 (Sri Lankan) visa.
The appellant is a citizen of Sri Lanka and first entered Australia on 30 January 1995 as the holder of Close Family Visitor (Short Stay) visa. Following the expiration of that visa, the appellant applied to the first respondent for a protection visa, citing civil disruption and violence in Sri Lanka. This application was refused by a delegate for the first respondent and this decision was later affirmed by the Refugee Review Tribunal on 17 May 1996.
The current visa refusal relates to a subclass 435 (Sri Lankan) visa.
The appellant did not appear at the Federal Magistrates Court and the matter was subsequently dismissed on the basis that there was no reasonable cause of action. The dismissal was made by the Federal Magistrate pursuant to r 13.10 of the Federal Magistrates Court Rules 2001 and is therefore considered to be an interlocutory judgment and summary dismissal.
Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), an appeal shall not be brought from an interlocutory decision of a Federal Magistrate without first seeking leave to appeal. I note that no such leave has been sought by the appellant prior to the hearing date and an application now would be out of time. I propose to treat this application as an application for an extension of time and for leave to appeal, and in the circumstances arising to go straight to the central issue on the merits.
Before me the appellant argued that the decision of the Tribunal was made without jurisdiction, that he was denied procedural fairness and natural justice both before the Tribunal and the Federal Magistrates Court, and that additional submissions given to the Tribunal by the appellant were not considered by the Tribunal. It was contended that the relevant criteria for the visa applied for were invalid and arbitrary, and that the Tribunal and the Federal Magistrates Court should not have been ‘shackled’ by those criteria. In addition, the appellant raised matters relating to his application for a protection visa which are not relevant to my enquiry.
It is worth briefly commenting on the background to subclass 435 (Sri Lankan) visas.
Subclass 435 (Sri Lankan) visas were introduced in 1990 as entry permits for temporary visitors from Sri Lanka who had arrived lawfully in Australia. The visas were introduced under s 31 of the Migration Act 1958 (Cth) (‘the Migration Act’) as part of a humanitarian program. As noted by McInnis FM in the decision on appeal in Dirckze v Minister for Immigration and Citizenship (No 2) [2007] FMCA 743:
Under that program temporary arrangements were made for persons lawfully in Australia who, in the then government's view, were unable to return or ought not return to their home country because of, for example, internal conflict in their country of origin. There is no dispute that arrangements were made for the issue of subclass 435 visas in circumstances arising out of what could be considered to be civil conflict and unrest that existed in Sri Lanka in 1990.
The subclass 435 (Sri Lankan) visas were periodically extended on an individual basis up until 31 July 1996, when it was determined that no more renewals would be granted.
On 13 June 1997 the then Minister for Immigration and Multicultural Affairs announced a new category of permanent residency visas to be created for citizens of various countries, including citizens of Sri Lanka who had arrived lawfully in Australia on or before 1 November 1993 and who had resided in Australia for 10 years.
The validity of the cut-off date for eligibility for a subclass 435 (Sri Lankan) visa has been tested on a number of occasions, including by the Full Court of the Federal Court. In considering this criteria, the Full Court in De Silva, Liyanage Pilak Robert Leonard & Ors v Minister for Immigration & Multicultural Affairs (1998) 159 ALR 355 at 365 (Black CJ, Goldberg and Finkelstein JJ) held:
Properly formulated, the distinction drawn by the Regulation is between persons who arrived in Australia on or before 1 November 1993, and persons who arrived in Australia after 1 November 1993. That distinction has no basis in national origin. The fact that it only impacts upon persons who have otherwise satisfied the eligibility criteria for an extended Subclass 435 visa (including the criterion of Sri Lankan citizenship which, the appellants submit, amounts in this case to Sri Lankan national origin) is presently irrelevant. It is not those other criteria that are under review; rather, it is the criterion, introduced by the Regulation, that an applicant have entered Australia on or before 1 November 1993. The only question of relevance to such review is whether that criterion is based on national origin. In our view it is not. It is based on the date of individual applicants’ entry into Australia.
In discussing the validity of the 1 November 1993 cut-off date as opposed to the allowance of Sri Lankan citizens arriving after 1993, their Honours held:
Whilst there was necessarily some arbitrariness in the selection of the 1 November 1993 cut‑off date, the considerations balanced by the Minister in the process of that selection were relevant and reasonable, and were matters to which the executive branch of government was entitled to have regard in exercising its regulation-making power under the Act.
Further, the Full Court approved the earlier decision of Merkel J in De Silva, Liyanage Pilak Robert Leonard & Ors v Ruddock, Mr Philip (in his capacity as Minister for Immigration & Multicultural Affairs) & Anor [1998] FCA 95, where his Honour stated the following in relation to the policies behind the cut-off date:
The cut off date of 1 November 1993 was determined taking into account a range of factors including Australia’s economic and budgetary capacity to assist. It provides a necessary cut off between those who had been here for a lengthy period without their status resolved and those who had arrived more recently in the full knowledge of circumstances in their home countries. The people who had arrived more recently were granted temporary extensions on the clear understanding that they would have to return home.
It was also highlighted by Merkel J that visa applicants that were ineligible for a subclass 435 (Sri Lankan) visa as a result of their entrance date to Australia were still able to seek a protection visa if they could show a well-founded fear of persecution on return to Sri Lanka as defined in the Convention for Refugees as amended by the Refugees Protocol.
Based on earlier authority, it is clear there is nothing to suggest that the 1 November 1993 cut-off date is invalid.
The appellant arrived in Australia on 30 January 1995. On 30 June 1997, the eligibility requirements for the subclass 435 (Sri Lankan) visa were amended by Migration Regulations (Amendment) Statutory Rule No 184. That amendment meant that eligibility for the subclass 435 (Sri Lankan) visa included a requirement for entry into Australia by a visa applicant on or before 1 November 1993. As I have said, the validity of that requirement was upheld by a Full Court of this Court in De Silva v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 355 at 365, which I am bound to apply in this proceeding.
When the appellant applied for a subclass 435 (Sri Lankan) visa he did not meet the requirement of having entered Australia on or before 1 November 1993. Accordingly, he did not qualify for the visa. The delegate correctly rejected his application. The Tribunal correctly affirmed the delegate’s decision. On the merits, the Federal Magistrates Court would have had no alternative but to reject the application for judicial review of the Tribunal’s decision. Clause 435.213 of the Migration Regulations 1994 (Cth) which applied at the relevant time provided that an applicant for a subclass 435 (Sri Lankan) visa must have entered Australia on or before 1 November 1993.
The other matters raised by the appellant, even if they had some merit (which in my view they do not), would not give rise to the relief sought by the appellant. It would be futile to grant the relief sought as under no circumstances could the appellant satisfy the necessary criteria to be granted a subclass 435 (Sri Lankan) visa.
The application should be treated as an application for an extension of time and for leave to appeal from the decision of McInnis FM of 6 July 2007. The application for an extension of time and for leave to appeal should be dismissed. The applicant should pay the first respondent’s costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate:
Dated: 19 November 2007
Counsel for the Appellant: Self-represented Counsel for the First Respondent: D Brown Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 8 November 2007 Date of Judgment: 22 November 2007
0
3
0