Jayasinghe v Minister for Immigration

[2006] FMCA 1036

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JAYASINGHE v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1036

MIGRATION – Migration Review Tribunal – partner visa – partner residence visa – whether jurisdictional error – failure to comply with s.359A of the Migration Act.

Migration Act 1958, ss. 353, 359A, 362A,
Migration Regulations 1994

SAAP v Minister for Immigration and MulticulturalAffairs [2005] HCA 24
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231
Applicant A227 of 2003 v Minister for Immigration [2004] FCA 567
WAJS v Minister for Immigration [2004] FCAFC 139
Minister for Immigration and Multicultural and Indigenous Affairs v VOAO and VOAP [2005] FCAFC 50

Applicant: DINESH SURANGA JAYASINGHE

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 19 of 2006

Judgment of: McInnis FM

Hearing date: 3 July 2006

Delivered at: Melbourne

Delivered on: 27 July 2006

REPRESENTATION

Counsel for the Applicant: Mr Hamilton

Solicitors for the Applicant: Goz Chambers Lawyers

Counsel for the Respondents: Mr R.C. Knowles

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Amended Application be dismissed.

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 19 of 2006

DINESH SURANGA JAYASINGHE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this application the Applicant relies upon an amended application filed 12 April 2006.  In the amended application, judicial review is sought of a decision of the Migration Review Tribunal (the Tribunal) dated 5 January 2006.  In its decision, the Tribunal affirmed a decision of a delegate finding that the Applicant is not entitled to the grant of a partner (temporary) (class UK) visa nor a partner (residence) (class BS) visa.

2. The Applicant has relied upon contentions of fact and law filed 12 April 2006 and otherwise relied upon submissions made for and on his behalf by counsel before this court.  The First Respondent has relied upon contentions of fact and law filed 12 May 2006.  It will be evident that during the course of submissions, counsel now appearing for the Applicant, who did not prepare the Applicant's contentions of fact and law, sought to agitate further issues, although essentially did not in my view necessarily raise new issues for the consideration of this court.

3. The background facts in this matter are not substantially in dispute.  The chronology of events set out in the First Respondent's contentions of fact and law appear to accurately reflect the material before the Tribunal and documents which are in the court book.  The Applicant is a Sri Lankan citizen who arrived in Australia on 15 July 1998 as the holder of a student visa.  On 10 October 2003, the Applicant lodged with the First Respondent's Department and application to migrate to Australia on spouse grounds.  Certain documents were forwarded to the department by the then representative of the Applicant by a letter dated…