P.U. De Silva v Minister for Immigration
[2007] FMCA 1180
•26 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P.U. DE SILVA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1180 |
| MIGRATION – Application doomed to fail – unable to satisfy condition of visa relating to date of entry into Australia. |
| Applicant: | PRIYANKARAGE UPUL DE SILVA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 132 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 $1932.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 132 of 2007
| PRIYANKARAGE UPUL 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 for judicial review of a decision of the Migration Review Tribunal of 18 December 2006 where it was decided that the applicant was not entitled to a Sri Lankan (temporary) (class TT) visa. The Migration Review Tribunal considered the applicant's application in light of clause 435.214 which requires that the application be made by a person who is not the holder of a visa other than a subclass 435 visa having effect on or after 31 July 1997.
The applicant was, at the time of the application, the holder of a student subclass 560 visa which was valid until 31 July 1998. The applicant was therefore not entitled to apply for a 435 visa a result of that condition, 435.214. Even if the tribunal were wrong in this regard, the applicant is not entitled to a class 435 visa as the relevant visa conditions at that time required that he be in Australia on or before 1 November 1993 and he did not in fact arrive in Australia until 1996. He can therefore never succeed in obtaining a visa of this type.
The applicant had previously applied for a protection visa in 1997 which was refused by the Refugee Review Tribunal in 1999, judicial review proceedings were unsuccessful in this court in 2004, on appeal in the Federal Court in 2005 or on a special leave application in the High Court in 2006.
The applicant made submissions that he is a skilled migrant, having completed a course of study at RMIT on a scholarship. He graduated last year and is able, he says, to bring significant skills to Australia.
He says that the situation in Sri Lanka is very bad and that he has been here for 11 years and now has three children: a son, nine, and twins who are two. He is concerned that his children cannot speak Sri Lankan well and that it would be a great hardship for them to return to Sri Lanka. He also tells of his conversion to Christianity from Buddhism and his concern that some Buddhist groups in Sri Lanka have, according to him, being persecuting Christians and that he may suffer some persecution as a result of this.
These are not matters that I can taken into account in deciding the judicial review proceedings. The limit of my power is to determine whether or not the decision of the Migration Review Tribunal decision should be quashed and the matter returned to the tribunal to consider whether or not he is entitled to a Sri Lankan (temporary) (class TT) visa. On the material before me, the applicant will never be entitled to such a visa and can never fulfil the conditions of such a visa category due to his date of arrival in Australia. Even if his specific ground for judicial review were to be of substance - and I do not accept that it was on my reading of the conditions - he would nonetheless fail in obtaining such a visa because of his entry date. The proceedings are therefore futile. I find that there is no prospect of success on the part of the applicant and that therefore the application ought to be dismissed.
I note, for the applicant’s information, that I have no power to order that a visa be issued or to grant the applicant a visa on any other grounds even if the matters he raised would be properly the subject of an application to the Minister or potentially some form of skilled migrant visa application. These are matters that he can take advice about from an appropriate person or the department about and pursue as he sees fit.
In the circumstances I therefore dismiss the current application.
I order that the applicant pay the respondent's costs at $1932 on the basis that the applicant has been unsuccessful and that the costs sought are reasonable, being less than the scale amount.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: J.McLean
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