P. M. De Silva v Minister for Immigration
[2007] FMCA 1179
•26 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P. M. DE SILVA v MINISTER FOR IMMIGRATION | [2007] FMCA 1179 |
| MIGRATION – Application doomed to fail – unable to satisfy condition of visa relation to date of entry into Australia. |
| Muin v Refugee Review Tribunal Lie v Refugee Review Tribunal [2002] HCA 30 |
| Applicant: | PANAGODAGE MANOJINI DE SILVA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 108 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 26 June 2007 |
| Date of last submission: | 26 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms Jayasinghe |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant to pay the respondent’s costs fixed at $1925.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 108 of 2007
| PANAGODAGE MANOJINI DE SILVA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This is an application to judicially review a decision of the Migration Review Tribunal signed on 6 December 2006. The applicant first entered Australia on 20 December 1996 as the holder of a student visa. In 1997 she applied for a Sri Lankan (temporary) (class TT) visa. This was refused by a delegate of the minister and the subject of the MRT decision that is now the subject of these proceedings.
An essential condition of the Sri Lankan (temporary) (class TT) visa is contained in clause 435.213 which requires that the applicant have entered Australia on or before 1 November 1993. The applicant, on her own case, did not enter Australia on or before 1 November 1993. She can therefore never be entitled to a visa of this type under the regulations. As a result, her application for this visa type is necessarily doomed to fail. I therefore find that the judicial review of this decision is futile and can never ultimately succeed before the tribunal.
I also note that the particulars of the grounds of application are that there has been a change in circumstances in Sri Lanka and that the tribunal ought to have taken into account the civil war in Sri Lanka. Once the tribunal had concluded that the applicant could not be entitled to this visa type as a result of her date of entry into Australia, it was not required to go further, and even if it had taken these facts into account, it could not have altered the outcome of the decision.
I inquired of the minister and the applicant as to whether she had sought a protection visa and the minister outlined that a protection visa was sought on 13 February 1997, refused by a delegate in May 1997, refused by the RRT in April 1999 and then the applicant became part of the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 class action. Her case had few steps taken until 17 December 2004 when, after it was remitted from the Federal Court to the FMC. Phipps FM dismissed her judicial review application. That decision went on appeal to Sundberg J on 26 October 2005 where it was dismissed. The applicant sought special leave to appeal to the High Court which was dismissed in April 2006.
The applicant agrees that she did apply for a protection visa and was unsuccessful in obtaining same and unsuccessful in her applications to the court.
The applicant also asked that I take into account that she has been in Australia for 10 years and that there would be great hardship in her returning to Sri Lanka. Whilst these are matters that the minister may have regard to in an application for the minister to exercise a discretion to grant a visa, they are not matter that can be the basis for judicial review proceedings. It is not open to me in these proceedings or in any proceedings in this court to make orders for the issue of a visa or any particular type of visa.
In these circumstances I therefore find that the application raises no arguable case, that the applicant has no prospects of success and that I must therefore dismiss the application.
The applicant has been by her unsuccessful in these proceedings. From comments made from the bar table, it appears that the proceedings are being brought solely for the collateral purpose of maintaining her residence in Australia even though she acknowledges that the circumstances are such that she could not succeed in obtaining a visa. In these circumstances it is appropriate that she pay the costs of the minister fixed at $1925, being the sum sought by the minister. I find that the sum is reasonable having regard to the scale amount which is greater than this. The applicant says that she can pay this sum by instalments. I do not propose to make an instalment order at this stage. That can be the matter of negotiation between her and the minister and if the minister seeks to bring enforcement proceedings, I will consider that question at that time.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: J.McLean
Date:
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