Mudiyanselage v Minister for Immigration and Multicultural Affairs

[2002] FCAFC 190

FEDERAL COURT OF AUSTRALIA

Mudiyanselage v Minister for Immigration & Multicultural Affairs
[2002] FCAFC 190

MIGRATION – appeal – no error in primary judge’s reasons – where Subclass of visa not available

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Wu v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 245 followed
Onea v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 254 approved
Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513 followed
Minister for Immigration & Multicultural Affairs v Hayman (1999) 90 FCR 120 followed

JAYANTHA HENARATH MUDIYANSELAGE v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V1172 OF 2001

BLACK CJ, DRUMMOND AND KENNY JJ
MELBOURNE
8  MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1172 OF 2001

BETWEEN:	JAYANTHA HENARATH MUDIYANSELAGE APPELLANT
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BLACK CJ, DRUMMOND AND KENNY JJ
DATE OF ORDER:	8 MAY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant pay the 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	V1172 OF 2001

BETWEEN:	JAYANTHA HENARATH MUDIYANSELAGE APPELLANT
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BLACK CJ, DRUMMOND AND KENNY JJ
DATE:	8 MAY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BLACK CJ

1. This is an appeal from a decision of Finkelstein J summarily dismissing the appellant's application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”).  The decision of the Tribunal which the appellant sought to set aside affirmed a decision of the delegate of the Minister to refuse the appellant a Special Eligibility (Residence) (Class AO) Subclass 832 (Close Ties) visa.  The relevant facts of this case are set out in Finkelstein J's reasons for decision and there is no need for me to repeat them.  In his notice of appeal the appellant simply says that the grounds of appeal are “Section 476 of the Migration Act1958 (Cth)”. This does not tell the Court what the grounds of appeal really are but what the appellant wants to say emerges from what he has put before us in writing, which we have of course read.

2. His primary contention is that the Tribunal and Finkelstein J, in considering his case, were required to, but did not, consider other Subclasses of visas for which he could be eligible.  In particular, the appellant says that he satisfies the criteria for a Subclass 806 (Family) visa. 

3. When he appeared before us today, assisted by Mr Jayasinghe, the interpreter, the appellant simply said that the Court should send the case back to be reconsidered.  But we take him to have intended to adopt what he had already said in writing.  The Minister’s answer to the appellant’s argument is that it cannot assist him for the reason that the Subclass 806 (Family) visa, which he says the Tribunal and Finkelstein J should have considered, was not available at the relevant time.   This is because the relevant part of the MigrationRegulations1994 (Cth) that created that visa were repealed on 1 November 1999 and therefore could not have been considered by the Tribunal or by the primary judge.

4. In any case, the Minister's barrister says the Tribunal did not have the power, as a matter of law, to consider any other visa because there was no application for such a visa.  Ms Kennedy refers the Court to a number of decisions of other judges which support that conclusion: See Wu v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 245 at 261 per Carr J, and at 279 per Nicholson J (with whom Jenkinson J agreed); Onea v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 254 at 261; Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513 at 527 to 528 and Minister for Immigration & Multicultural Affairs v Hayman (1999) 90 FCR 120 at 124.

5. Finkelstein J noted the findings of fact about the appellant's eligibility for a visa. There was also an affidavit about those facts.  It was on that basis that Finkelstein J, the primary judge, concluded that the appellant’s case was hopeless because even if the Tribunal had made a mistake, the appellant could never have got the visa that he sought.

6. In these circumstances I see no reason to doubt the correctness of the primary judge's decision to dismiss summarily the application for judicial review.  The visa Subclass which the appellant says the Tribunal and Finkelstein J should have had regard to simply was not available at the relevant time.  So in whatever way one looks at the case, I conclude that the primary judge was correct in holding that the Tribunal would have had no choice but to dismiss the appellant's case anyway if it went back to the Tribunal. 

7. I therefore do not find any legal error in the judge's decision to dismiss the application for review of the Tribunal's decision. 

8. I should add that the role of the Court is not to decide what I will call the merits of the case; it is to decide whether or not a legal error has been made by the Tribunal.  In this case the learned trial judge said that because of the circumstances as I have outlined them, even if there had been a legal error there was no way in which the Tribunal could lawfully have granted the visa sought.  So, therefore, the primary judge's decision to dismiss the application for review was correct and the appeal must be dismissed with costs.

DRUMMOND J

1. I agree with the orders proposed by the learned Chief Justice and with his Honour’s reasons.

KENNY J

1. I too agree with the orders proposed by the Chief Justice and for the reasons given by him.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated:  16 August 2002

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Ms M. Kennedy
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 May 2002
Date of Judgment:	8 May 2002