Fernando v Minister for Immigration & Citizenship

[2007] FCA 1320

FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration & Citizenship [2007] FCA 1320

WARNAKULASURIYAGE CHAMINDA MANOJ FERNANDO, HIMALI ANUPAMA KURUWITAARACHICHI, NATASHA FERNANDO AND TARISHA FERNANDO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID 550 OF 2007

MARSHALL J
27 AUGUST 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 550 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

WARNAKULASURIYAGE CHAMINDA MANOJ FERNANDO
First Appellant

HIMALI ANUPAMA KURUWITAARACHICHI
Second Appellant

NATASHA FERNANDO
Third Appellant

TARISHA FERNANDO
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 550 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

WARNAKULASURIYAGE CHAMINDA MANOJ FERNANDO
First Appellant

HIMALI ANUPAMA KURUWITAARACHICHI
Second Appellant

NATASHA FERNANDO
Third Appellant

TARISHA FERNANDO
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 appellants appeal from a judgment of Federal Magistrate McInnes in which his Honour dismissed an application for judicial review of a decision of the Migration Review Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent Minister that the appellants were not entitled to Sri Lankan (Temporary) (class TT) visas (subclass 435 visa).

2. The first and second appellants are husband and wife. They entered Australia on 22 July 1995 and 12 May 1996, respectively. The third and fourth appellants are their children. The first and second appellants held subclass 435 visas from 10 September 1996 (first appellant) and 17 September 1996 (second appellant). The visas were valid until 31 July 1997. The first and second appellants each applied for another subclass 435 visa on 31 July 1997. A delegate of the Minister refused those applications on 7 August 1997. For reasons which are currently not relevant, reviews of the delegate’s decisions were extant as at 28 September 2006. On that day, the Tribunal wrote to the first and second appellants under s 359A of the Migration Act 1958 (Cth). The Tribunal advised the first and second appellants that it had information about when they entered Australia and advised them that the eligibility criteria for the issue of subclass 435 visas required the visa applicant to have entered Australia on or before 1 November 1993.

3. Despite requesting an extension of time to respond to the s 359A letter, the first and second appellants did not respond in substance to the letter. The first appellant attended a hearing before the Tribunal on 27 November 2006. The Tribunal decided the appellants were not eligible for subclass 435 visas because they did not satisfy cl 435.213 of the Migration Regulations 1994 (Cth) as it stood at the time of applying for the visas, in that they did not enter Australia on or before 1 November 1993.

4. Federal Magistrate McInnis agreed with the Tribunal. His Honour applied his judgment in Dirckze v Minister for Immigration and Citizenship [2007] FMCA 473 which was based on indistinguishable facts. I dismissed an appeal from that judgment this morning. The reasoning adopted in my judgment dismissing that appeal, Dirckze v Minister for Immigration and Citizenship [2007] FCA 1321, is equally applicable to the current appeal.

5. The Tribunal and McInnis FM correctly determined that the appellants did not qualify for subclass 435 visas because the first and second appellants did not enter Australia on or before 1 November 1993. I note that in De Silva v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 355 at 365, a Full Court of this Court rejected a challenge to the validity of that qualifying requirement for subclass 435 visas.

6. The appeal is dismissed. The appellants must pay the costs of the first respondent.

I certify that the preceding six (6) 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:	Mr D Brown
Solicitor for the respondents:	Australian Government Solicitor
Date of hearing:	27 August 2007
Date of judgment:	27 August 20007