Dirckze v Minister for Immigration and Citizenship

[2007] FCA 1321

FEDERAL COURT OF AUSTRALIA

Dirckze v Minister for Immigration and Citizenship [2007] FCA 1321

MAXWELL KENNETH DIRCKZE, JEAN SUZANNE PATRICIA DIRCKZE, CASSANDRA SHANNEN DIRCKZE AND CRAIG KEEGAN PHILLIP DIRCKZE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID 499 OF 2007

MARSHALL J
27 AUGUST 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 499 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MAXWELL KENNETH DIRCKZE
First Appellant

JEAN SUZANNE PATRICIA DIRCKZE
Second Appellant

CASSANDRA SHANNEN DIRCKZE
Third Appellant

CRAIG KEEGAN PHILLIP DIRCKZE
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	27 AUGUST 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants pay the first respondent’s costs of the appeal.

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 499 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MAXWELL KENNETH DIRCKZE
First Appellant

JEAN SUZANNE PATRICIA DIRCKZE
Second Appellant

CASSANDRA SHANNEN DIRCKZE
Third Appellant

CRAIG KEEGAN PHILLIP DIRCKZE
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	27 AUGUST 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The first and second appellants are husband and wife.  The third and fourth appellants are their daughter and son.  The appellants appeal from a judgment of the Federal Magistrates Court. The Federal Magistrate dismissed an application for judicial review of a decision of the Migration Review Tribunal (Tribunal). The Tribunal had affirmed the decision of a delegate of the first respondent Minister that the first appellant was not entitled to a Sri Lankan (Temporary) (class TT) visa (subclass 435 visa).

2. The application the subject of the Tribunal’s decision was dated 30 July 1997. The second, third and fourth appellants were included in the application as members of the first appellant’s family. Between 20 February 1996 and 31 July 1997 the first, second and third appellants held subclass 435 visas. The fourth appellant was born in Australia on 21 November 1996 and is now an Australian citizen.

3. The first, second and third appellants arrived in Australia on 9 November 1995. On 30 June 1997, the eligibility requirements for subclass 435 visas were amended by Migration Regulations (Amendment) Statutory Rule No 184. That amendment meant that eligibility for the subclass 435 visa included a requirement for entry into Australia by a visa applicant on or before 1 November 1993. 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.

4. When the first appellant applied for a subclass 435 visa on 30 July 1997, 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. The Court below 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 visa must have entered Australia on or before 1 November 1993, which is slightly more than two years before the first appellant entered Australia.

5. Having regard to the foregoing, the appeal must be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        27 August 2007

The first appellant represented the appellants.
Counsel for the first respondent:	Ms U Jayasinghe
Solicitor for the first respondent:	Clayton Utz
Date of hearing:	27 August 2007
Date of judgment:	27 August 2007