JAYASEKARA v Minister for Immigration

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

CaseChat Overview and Summary

In Jayasekara v Minister for Immigration, the appellant challenged the decision of the Minister for Immigration to cancel his visa. The case was heard in the Federal Circuit and Family Court of Australia. The appellant, a Sri Lankan national, argued that the Minister's decision was unlawful and unreasonable, as it failed to take into account relevant factors, including the appellant's family ties in Australia and his good character. The Minister, represented by the Attorney-General, contended that the decision to cancel the appellant's visa was lawful, as it was based on national security grounds and the appellant's criminal history.

The court was required to determine whether the Minister's decision to cancel the appellant's visa was lawful and whether the appellant's rights under the Migration Act 1958 were breached. The court also had to consider whether the Minister's decision was unreasonable and whether the appellant's family ties in Australia and good character should have been taken into account. The court had to balance the appellant's rights with the Minister's duty to protect the national security of Australia.

The court found that the Minister's decision to cancel the appellant's visa was lawful and reasonable. The court held that the Minister was entitled to consider national security grounds in making the decision and that the appellant's criminal history was a relevant factor. The court also found that the appellant's family ties in Australia and good character did not outweigh the national security concerns. The court held that the Minister's decision was not unlawful or unreasonable and that the appellant's rights under the Migration Act 1958 were not breached.

The court dismissed the appellant's application and ordered that the matter be transferred to the Federal Court of Australia for further proceedings. The court also ordered that the appellant pay the costs of the proceeding.

Orders of the court

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established