Fernando v Minister for Immigration

[2007] FMCA 862

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FERNANDO & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 862

MIGRATION – Migration Review Tribunal – temporary class TT visa – whether jurisdictional error – application dismissed.

Dirckze & Ors v Minister for Immigration & Anor (No.2) [2007] FMCA 743

First Applicant: WARNAKULASURIYAGE CHAMINDA MANOJ FERNANDO

Second Applicant: HIMALI ANUPAMA KURUWITAARACHICHI

Third Applicant: NATASHA FERNANDO

Fourth Applicant: TARISHA FERNANDO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 85 of 2007

Judgment of: McInnis FM

Hearing date: 31 May 2007

Delivered at: Melbourne

Delivered on: 31 May 2007

REPRESENTATION

First Applicant: In person

Second Applicant No appearance

Third Applicant No appearance

Fourth Applicant No appearance

Solicitor for the First Respondent: Mr D.J. Brown

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application be dismissed.

2. The Applicants shall pay the First Respondent's costs fixed in the sum of $4,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 85 of 2007

WARNAKULASURIYAGE CHAMINDA MANOJ FERNANDO

First Applicant

HIMALI ANUPAMA KURUWITAARACHICHI

Second Applicant

NATASHA FERNANDO

Third Applicant

TARISHA FERNANDO

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. In this application the Applicants seek judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 12 December 2006.  In its decision the Tribunal affirmed decisions under review not to grant Sri Lankan temporary class TT visas to the visa Applicants. 

2. The First Applicant, who appears this day, relies upon the application which has been filed together with Applicants' contentions filed 19 April 2007.  The First Respondent relies upon contentions filed 15 May 2007.  I am satisfied that the First Respondent's contentions accurately set out the background to this matter as follows:

   “1.The first applicant (the applicant husband) first arrived in Australia on 22 July 1995 on a Subclass 560 student visa, and the second applicant (the applicant wife) first arrived in Australia on 12 May 1996 on a Subclass 560 student visa.

   Subclass 435 visa application

   2.The applicant husband and applicant wife sought the cancellation of their student visas on 5 August 1996, having made applications on 22 July 1996 and 23 July 1996 respectively for Class 435 Sri Lankan visas.

   3.On 10 September 1996 the applicant husband was granted a Subclass 435 Sri Lankan (Temporary) visa valid until 31 July 1997; the applicant wife was granted a Subclass 435 Sri Lankan (Temporary) visa on 17 September 1996, also valid until 31 July 1997.

   4.Subclass 435 Sri Lankan (Temporary) visas made by both the applicant husband and applicant wife on 31 July 1997, but were refused on 7 August 1997. On 4 and 16 September 1997 the applicant husband and applicant wife applied to the Migration Internal Review Office for review of the decision; on 14 October 1997 a Migration Internal Review Office officer affirmed the decision to refuse to grant the applicant husband and wife a further 435 visa.

   5.The applicants were advised that the Migration Internal Review Office (MIRO) decision was reviewable by the Immigration Review Tribunal, and that they needed to apply for review within 28 days, thus relying on old Regulation 5.03 of the Migration Regulations 1994.

   6.The Migration Review Tribunal, in March 2006, determined that the nature of this notification, viewed in the light of M1MA v Singh (2000) 98 FCR 77, left the review application outstanding as at 1 June 1999, when the Migration Review Tribunal was introduced and took over all outstanding MIRO applications. The Migration Review Tribunal therefore had jurisdiction to review the delegate's decision made on 7 August 1997 to refuse to grant the 435 Sri Lankan (Temporary) visas.

   7.On 25 February 2006 the applicants were advised by the Department to contact the Migration Review Tribunal, as it was thought that they might have an outstanding merits review application with the Migration Review Tribunal in relation to their application for review of the delegate's decision of 7 August 1997 to refuse to grant the applicants' 435 Sri Lankan (Temporary) visas. The Migration Review Tribunal confirmed on 27 April 2006 that the applicants had an active application for review, and invited the applicants to submit relevant documents and arguments to the Tribunal.

   Tribunal consideration

   8.The Tribunal wrote a s 359A letter to the applicants on 28 September 2006, advising that the Tribunal had information that the applicant husband entered Australia on 22 July 1995, and the applicant wife on 12 May 1996, and that at the time of application the eligibility criteria for the issue of a subclass 435 Sri Lankan (Temporary) visa required the visa applicant to have entered Australia on or before 1 November 1993.

   9.An extension was requested by the applicant husband to respond to the s 359A letter, and granted, but no response was subsequently received by the Tribunal. The applicant husband was subsequently invited to attend a Tribunal hearing on 27 November 2006, and did so. The applicant wife did not attend due to ill health.”

3. I also set out as an accurate record the Tribunal decision that is, paragraphs 10, 11 and 12 of the First Respondent’s contentions:

   “10.On 28 February 2006 the review applicant was deemed to have lodged an application for review of the delegate's decision.

   11.On 28 September 2006 the Tribunal wrote to the review applicant pursuant to section 359A of the Act, inviting him to comment on their international movement records. On I November 2006 the Tribunal granted an extension of time to respond to its letter of 28 September 2006. The review applicant was advised that any comments should be received by 11 December 2006.

   12.On 27 November 2006 a hearing was conducted at which the review applicant gave evidence. The review applicant's spouse did not attend the Tribunal hearing due to ill health.”

4. When the matter commenced I brought to the attention of the parties a decision delivered by this Court on 18 May 2007, namely the matter of Dirckze & Ors v Minister for Immigration & Anor (No.2) [2007] FMCA 743 (Dirckze).  It seems to me that the facts and circumstances in the present case are significantly similar to the facts and circumstances which confronted the Court in Dirckze.  The analysis by the Court in that case of the relevant law, in my view, applies with equal force to the present application.  I can see no basis upon which the decision of the Court in Dirckze could be distinguished.

5. Accordingly, adopting and applying the Court's reasoning in that decision, it follows, for the reasons given in that decision, that, likewise, in this decision, the application should be dismissed with costs.  There is clearly no jurisdictional error on the part of the Tribunal in the manner in which it has applied the relevant regulations and requirements.

6. Whilst the outcome of this application, no doubt as with others, may appear to be, in the eyes of the Applicants, somewhat unfair, the fact remains that there is indeed a cut‑off line that has been set and that cut‑off line is one which on the facts of this case cannot be overcome by the Applicants, and the law to be applied is the law which I have analysed and applied in Dirckze, which, as I indicate, applies with equal force in this application.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date: 31 May 2007