Don v Minister for Immigration
[2008] FMCA 346
•31 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DON v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 346 |
| MIGRATION – Migration Review Tribunal – application by First Respondent for summary dismissal of Applicant’s application. |
| Federal Magistrates Court Rules 2001, r.13.10(a) Migration Act 1958, s.359A Migration Regulations 1994 |
| De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 |
| Applicant: | THUSHARA ROSMAN SENARATNE ARACHCHIGE DON |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1433 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 7 March 2008 |
| Date of Last Submission: | 7 March 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 31 March 2008 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
THAT pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001, the application be dismissed.
THAT the Applicant shall pay the First Respondent's costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1433 of 2007
| THUSHARA ROSMAN SENARATNE ARACHCHIGE DON |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is the First Respondent's application for summary dismissal.
At the hearing today the Applicant sought an adjournment of the proceedings, which I declined in the ultimate to grant. Having heard the parties, I reserved my decision.
For the reasons which follow, I have concluded that the application for summary dismissal should be granted and the Applicant's application be dismissed.
On 18 October 2007 the Applicant applied for an order to show cause in respect of the decision of the Migration Review Tribunal ("the Tribunal") made on 13 September 2007 by which the Tribunal refused the grant the Applicant a (Temporary) (Class TT) visa under the Migration Act 1958 ("the Act").
The grounds of the application inter alia asserted that:
The cut off date of November 1 1993 is beyond the regulation making powers of the Minister and is it also unreasonable and oppressive for it violates the government's obligation to uphold the Geneva Convention.
In his affidavit also filed on 18 October 2007 the Applicant deposed that he arrived in Australia on 21 July 1995 as the holder of a 560 student visa, that he was granted a number of subclass 435 Sri Lankan visas, the last of which expired on 31 July 1997. (The First Respondent’s contentions indicate that he made application for a further subclass 435 visa which was refused by a delegate on 11 August 1997. An application for review to the then Migration Internal Review Office was rejected on 1 October 1997). The Applicant asserted that on 2 April 2007 he was renotified of the decision and he then applied to the Tribunal on 24 April 2007. The rest of his affidavit repeated the matters set out in the grounds of application. The decision of the Tribunal was an annexure to the affidavit.
The First Respondent filed a notice of appearance on 31 October 2007, and on 15 November 2007 filed an application for summary dismissal. The basis of the application was that the Applicant had no reasonable prospect of successfully prosecuting the proceedings.
On 5 December 2007 Registrar Byrne of this Court made a number of procedural orders requiring the Respondents to file and serve contentions of fact and law by 28 January 2008. (This appears to have occurred because the Court's copies are date‑stamped 29 January 2008).
The Applicant was required to file and serve contentions of fact and law by 4.00 pm on 11 February 2008.
The Applicant did not comply with that order, and, as I have said, when he attended Court today he sought an adjournment to enable him to get legal representation.
I refused that application for adjournment for two reasons. First of all, in my opinion, the Applicant had plenty of time to obtain legal representation should he have desired it. He had failed by almost a month to comply with the order of Registrar Byrne that he file and serve contentions of fact and law and had made no interim application otherwise to adjourn the matter.
The Applicant has had time to prepare since 18 October 2007, when he filed his materials, which were plainly prepared by a third party as the command of English shown in them was far in excess of what the Applicant's demeanor in Court suggested possible.
The second reason that I refused the adjournment was that the materials filed suggested that there would be no useful purpose in so doing.
The First Respondent's contentions of fact and law make a number of factual assertions which have not in any way been the subject of challenge. The First Respondent is required to conduct this proceeding as a model litigant, pursuant to the Attorney‑General's guidelines, and I have no reason to doubt, and indeed every reason to assume, that these factual assertions have not been advanced in some wantonly inaccurate way.
From the First Respondent's contentions of fact and law, it is apparent that the Applicant, following the rejection of his Protection (Class XA) visa on 31 July 1997, joined the De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 (“De Silva”) class action.
The Applicant applied to the Minister for Immigration
and Multicultural Affairs on 30 May 1999 asking him to
exercise ministerial discretion, which application was rejected on 13 September 1999.On 2 April 2007 the Applicant was renotified by the department of the delegate's decision taken in 1997 and on 24 April 2007 the Applicant applied to the Tribunal for review of that decision.
On 15 August 2007 the Tribunal wrote to the Applicant, inviting him, pursuant to s.359A of the Act, to comment on information held by the Tribunal to the effect that the Applicant had First arrived in Australia on 21 July 1995 and that it was a requirement for the grant of a Sri Lankan 435 visa that an Applicant enter Australia on or before 1 November 1993.
No response to the s.359A letter was received, and at the 29 August 2007 hearing before the Tribunal the Applicant confirmed that he first arrived in Australia on 21 July 1995.
The Tribunal in its decision found that the Applicant was required to have entered Australia on or before 1 November 1993 in order to meet the essential visa criterion then prescribed for the time of application contained in clause 435.213 in Part 435 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”). The Tribunal therefore affirmed the delegate's decision.
The Applicant's contention that the Tribunal's decision of 13 September 2007 was made without jurisdiction or was affected by error of jurisdiction is, in my view, misconceived.
The Applicant's assertion that the relevant regulations were made beyond the Minister's regulation‑making powers and in violation of the government's obligation to uphold the Geneva Convention echoes, as the First Respondent submits, the decision in De Silva. The Full Court in the De Silva case rejected all the arguments that attack the regulations.
I further accept the submission of the First Respondent that Australia's obligations under the 1951 Convention relating to the Status of Refugees are met by the provisions of the Act, including the right to apply for a Protection (Class XA) visa and to apply to the Refugee Review Tribunal for a review of any decision of the delegate's refusal to grant such a visa. The Applicant made such a protection application, but it was rejected. He clearly has not sought to review that decision before the Refugee Review Tribunal.
In these circumstances, I accept the First Respondent's submission that the Applicant's case has no reasonable prospects of success and that the application should be summarily dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001 (“the Rules”). I will therefore dismiss the application and order the Applicant to pay the First Respondent's costs.
I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 31 March 2008
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