JAYASEKARA v Minister for Immigration
[2006] FMCA 1061
•24 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JAYASEKARA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1061 |
| MIGRATION – Migration Review Tribunal – application transferred to the Federal Court of Australia. |
| Migration Act 1958 Migration Regulations 1994, condition 8202 |
| Chowdhury v Minister for Immigration [2005] FMCA 1243 Rayapalliv Minister for Immigration [2006] FMCA 24 Renv Minister for Immigration [2005] FMCA 370 Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261 |
| Applicant: | RUSHANTHA JAYASEKARA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 521 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 24 July 2006 |
| Date of last submission: | 24 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 24 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr C. Horan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The first respondent have leave to make an application to transfer the matter to the Federal Court of Australia after the first court date.
Pursuant to s.39 of the Federal Magistrates Act 1999, these proceedings be transferred to the Melbourne Registry of the Federal Court of Australia to be listed on a date to be advised.
The costs of today be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 521 of 2006
| RUSHANTHA JAYASEKARA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
In this matter the minister seeks an order transferring the proceedings to the Federal Court of Australia. The proceedings concern the operation of the student visa provisions under the Migration Act 1958 and in particular the question of whether or not the applicant has substantially complied with condition 8202 of the Migration Regulations 1994.
The tribunal decision was to the effect that the lack of a certificate from the education provider meant that the applicant could not substantially comply with the conditions of 8202. This is in accord with a decision of Ryan J in Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261.
The issue has arisen, it appears, on at least three other occasions in the Federal Magistrates Court Rule in Chowdhury v Minister for Immigration [2005] FMCA 1243, Rayapalliv Minister for Immigration [2006] FMCA 24 and Renv Minister for Immigration [2005] FMCA 370.
Not surprisingly, on each of those occasions it appears that the relevant Federal Magistrates followed the decision or reasoning process of Ryan J in Weerasinghe.
In this case the Minister concedes that the decision in Weerasinghe is erroneous and ought to be overruled. This is not a proper question for a Federal Magistrate to be determining, but rather a matter that ought to be before the Federal Court for determination as to whether or not it should be heard at first instance by a single judge or the Full Court of the Federal Court.
It is more appropriate for a Federal Court judge to hear argument as to whether or not a decision of a single judge of that court, which appears to be determinative of an issue, should be followed rather than such a matter being litigated in the Federal Magistrates Court, at least in circumstances where the Minister concedes the point to the applicant.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Melissa Gangemi
Date: 28 July 2006
0
4
2