Fernando v Minister for Immigration and Multicultural Affairs

[2000] FCA 1471

FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 1471

NO QUESTION OF PRINCIPLE

Migration Act 1958 (Cth) s48
Migration Regulations 1994 (Cth) Sch 2, para 833.212(b) and (d)

WEERAKONDA ARACHCHIGE MAHESH PUSHPALAL FERNANDO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V645 of 2000

MARSHALL J
MELBOURNE
23 OCTOBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V645 of 2000

BETWEEN:	WEERAKONDA ARACHCHIGE MAHESH PUSHPALAL FERNANDO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	23 OCTOBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of, and incidental to, the application.

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	V645 of 2000

BETWEEN:	WEERAKONDA ARACHCHIGE MAHESH PUSHPALAL FERNANDO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	23 OCTOBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The substantive proceeding in this matter is an application made by the applicant, Mr Fernando, for an order of review of a decision of the Migration Review Tribunal (“MRT”). By its decision dated 1 August 2000, the MRT affirmed a decision of a delegate of the respondent to refuse to grant Mr Fernando a Change in Circumstance (Residence) (Class AG) visa sub-class 833 (“the visa”).

2. At [7] of its reasons for decision, the MRT set out its understanding of Mr Fernando’s history of applying for visas in order to remain in Australia. The MRT said as follows:

   “The Visa Applicant first arrived in Australia on a Tourist (Short Stay) Visa Sub-class 676 on 29 December 1995 and was granted permission to remain in Australia until 29 March 1996. On 2 January 1996 he applied for and was granted a Sri Lankan (Temporary) visa, subclass 435, valid until 29 July 1996. On 29 July 1996 he applied for and was granted a Sri Lankan (Temporary) visa, subclass 435, valid until 31 July 1997. On the expiry date of his visa, the Visa Applicant applied for a further Sri Lankan (Temporary) Visa, sub-class 435, which was refused on 6 August 1997. On 27 June 1997 the Visa Applicant applied for a Protection Visa Sub-class 866 but this was refused on 16 July 1997. The Visa Applicant applied for a review of the further Sri Lankan (Temporary) Visa, sub-class 435, on 1 August 1997 but this was found to be invalid on 30 October 1997. On 8 December 1997 the Visa Applicant applied for a further Sri Lankan (Temporary) Visa, sub-class 435, which was refused on 9 December 1997. On 30 November 1998 the Visa Applicant made application for a Change of Circumstances (Residence) Class AG visa Sub-class 806 – Family (Special Need Relative) which was refused on 23 March 1999 and finally determined by a differently constituted Tribunal on 27 October 1999. On 19 November 1999 the Visa Applicant made application for a Change of Circumstances (Residence) Class AG visa Sub-class 806 – Family (Carer) but the Visa Applicant was advised on 31 January 2000 that the application was invalid. On 24 February 2000 the Visa Applicant lodged the application now under review.”

3. The MRT accepted that s48 of the Migration Act 1958 (Cth) (“the Act”) did not preclude Mr Fernando from applying for the visa. However, it noted that in order to qualify for the visa, Mr Fernando must have:

   ·    ceased to hold a substantive visa before turning 18; and

   ·    before he turned 18, spent the greater part of his formative years in Australia.

4. These are the two criteria which at the relevant time were referred to in para 833.212(b) and (d) of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

5. The MRT found that Mr Fernando did not satisfy either criterion referred to in the preceding paragraph. It noted that Mr Fernando ceased to hold a substantive visa when he was 19 years and 2 months old. That reference to Mr Fernando’s age was incorrect. He was actually 19 years and 4 months old at the relevant time but nothing turns on that mistake by the MRT. It remains correct that Mr Fernando had not ceased to hold a substantive visa before turning 18 years old.

6. The MRT also found that Mr Fernando had not spent the greater part of his formative years in Australia before he reached 18 years of age. That finding is correct because Mr Fernando was 17 years and 6 months old when he entered Australia.

7. The MRT concluded that it was impossible for Mr Fernando to meet the criteria referred to in para 833.212(b) and (d) of Sch 2 to the Regulations.

8. On 11 October 2000 the respondent issued a motion in which an order was sought pursuant to O20 r2 of the Federal Court Rules that the proceeding be dismissed as disclosing no reasonable cause of action. The motion was heard on 16 October 2000. Ms Law, a solicitor in the employ of the Australian Government Solicitor, appeared for the respondent. Mr Fernando represented himself.

9. Ms Law submitted that the MRT was correct in deciding that Mr Fernando did not meet the criteria required to be satisfied for the grant of the visa. Mr Fernando referred to the MRT’s erroneous reference to him being 19 years and 2 months old rather than 19 years and 4 months old when he ceased to hold a substantive visa. However, as demonstrated above, that is an error of no consequence.

10. Mr Fernando also referred to other incorrect dates referred to in the MRT’s decision. Those incorrect references were of no consequence but for completeness, I record them below:

    ·    Mr Fernando entered Australia on a sub-class 560 student visa on 2 August 1995, rather than on a Tourist (Short Stay) Visa on 29 December 1995 as referred to by the MRT. However, having been born in March 1978, Mr Fernando was 17 years and six months old when he entered Australia as the MRT correctly stated.

    ·    Mr Fernando alleged that he did not make an application for a Change of Circumstance (Residence) Class AG visa sub - class 806 - Family (Special Need Relative) on 30 November 1998 as the MRT stated he did at [7] of its reasons. Whether such application was made or not has no bearing on whether Mr Fernando satisfied the criteria needed to be satisfied for the grant of the visa.

11. Accordingly, it is my view that the proceeding before the Court is devoid of merit. Therefore, the motion for dismissal should be granted.

12. The Court will order as follows:

    1.   The application be dismissed.

    2.   The applicant pay the respondent’s costs of, and incidental to, the application.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             23 October 2000

The applicant appeared in person.
Solicitor for the Respondent:	Ms S Law of the Australian Government Solicitor
Date of Hearing:	16 October 2000
Date of Judgment:	23 October 2000