Ekanayake v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EKANAYAKE v MINISTER FOR IMMIGRATION [2005] FMCA 678

MIGRATION – Student visa – MRT decision.

PRACTICE AND PROCEDURE – Application deemed to be filed on behalf of applicant – role of solicitor – whether adjournment should be granted where no merit or arguable case – adjournment refused – duty of retained solicitor to be on court record when application filed – application for leave to file a notice of discontinuance refused – final order on substantive merits preferable.

Migration Act 1958, ss.116(1)(b), 116(3), 362B, 477(1)(a)

Minister for Immigration and Multicultural and Indigenous Affairs v Hou (2002) FCA 574
Minister for Immigration and Multicultural and Indigenous Affairs v Nguyen (2002) FCA 460

Applicant: EKANAYAKE M S EKANAYAKE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 1047 of 2004

Judgment of: McInnis FM

Hearing date: 12 May 2005

Delivered at: Melbourne

Delivered on: 12 May 2005

REPRESENTATION

Solicitor for the Applicant: Mr. C. Weerakoon

Solicitors for the Applicant: Chandra Weerakoon Solicitor

Counsel for the Respondent: Mr S. Hay

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed 11 August 2004 be dismissed.

2. The applicant shall pay the respondent's costs fixed in the sum of $6400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1047 of 2004

EKANAYAKE M S EKANAYAKE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter, the applicant, after consideration of the procedure which has been followed to bring this application before the Court, including evidence given by the applicant in somewhat unusual circumstances where a challenge was made to the authenticity of an application purportedly filed for and on behalf of the applicant on 11 August 2004.  The applicant has sought through his current legal representative leave to discontinue the application.  That application has been opposed.  In considering that application, it would be somewhat artificial to ignore the circumstances which ultimately lead to that application being made in Court this day.  When the matter commenced, the applicant was represented by a solicitor on record, Mr Weerakoon.  He indicated to the Court that he had only recently received instructions, and so much is evidenced by the fact that the notice of appearance in this matter was filed on 5 May 2005.  It is noted from the Court record that previous solicitor, Joseph Belbruno, had been on record as solicitor acting for and on behalf of the applicant.  He had filed a notice of appearance dated 3 March 2005.  By a notice of withdrawal, a practitioner, dated 27 April 2005, Mr Belbruno notified the parties that he had withdrawn.

2. The applicant through his current representative indicated that the application, though it bears a signature purportedly on the document for the applicant, was not a signature that he recognised.  He in fact gave evidence to that effect.  However, his evidence I take to be evidence that he had at one stage instructed a person purporting to be a…