Pothuwila v Minister for Immigration - [2008] FMCA 345

FEDERAL MAGISTRATES COURT OF AUSTRALIA

POTHUWILA v MINISTER FOR IMMIGRATION
& ANOR

[2008] FMCA 345

MIGRATION – Migration Review Tribunal – application by First Respondent for summary dismissal of Applicant’s application.

Migration Act 1958 (Cth), s.359A

Applicant:

PRAGNASEELA KEETHI KUMAR POTHUWILA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1468 of 2007

Judgment of:

Burchardt FM

Hearing date:

7 March 2008

Date of Last Submission:

7 March 2008

Delivered at:

Melbourne

Delivered on:

31 March 2008

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Mr Brown

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

THAT the application filed 26 October 2007 be dismissed.
THAT the Applicant shall pay the First Respondent’s costs fixed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT

MELBOURNE

MLG 1468 of 2007

PRAGNASEELA KEETHI KUMAR POTHUWILA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is the First Respondent's application for the summary dismissal of the Applicant's application.
To understand the matters raised by the parties, it is necessary to set out the procedural history of this application.
On 26 October 2007 the Applicant filed an application seeking to review a decision of the Migration Review Tribunal ("the Tribunal") made on 28 September 2007 by which the Tribunal affirmed the decision of the First Respondent's delegate made on 11 August 1997 that the Applicant did not meet the prescribed criterion for the grant of a protection visa.
That application was accompanied by an affidavit also filed on 26 October 2007 made by the Applicant. Having set out some factual matters which would go to support a protection visa, the Applicant deposed that on his arrival he applied for and was granted two Sri Lankan (Temporary) subclass TT435 visas, the last of which ceased on 31 July 1997.
The Applicant deposed that, before the expiry of the visa, a female staff member of the First Respondent told him that he needed to apply for
a “humanitarian” visa because he would no longer satisfy the criteria for the grant of a further subclass TT435 visa. He deposed that this officer gave him a form for a protection visa, which he completed and gave to her.
The Applicant deposed that by a decision dated 11 August 1997
a delegate of the First Respondent refused to grant him a protection visa on the grounds that he had applied for a subclass TT435 visa.
On 1 September 1997 the Applicant applied to the then Migration Internal Review Office ("the MIRO") for review of that decision, and the MIRO affirmed the decision under review on 30 September 1997.
On 16 October 2006 the Tribunal wrote a letter to the Applicant, pursuant to s.359A of the Migration Act 1958 (Cth) (“the Act”), inviting him to comment on information. The Applicant deposed that he would produce a copy of this letter on or before the hearing.
By submission dated 1 February 2007 the Applicant responded by his solicitors, the response being annexed to the affidavit. The response appears to be wholly concerned with issues about a refugee protection visa. The affidavit went on, leaving aside formal matters, to complain that:
I am aggrieved by the decision because the Tribunal made it decision on information that I was not given the opportunity to respond on. I am particularly aggrieved because the Tribunal did not consider my claim on its entirety. [sic]
The First Respondent filed a notice of appearance on 9 November 2007, and on 15 November 2007 filed an application for summary dismissal.
On 5 December 2007 Registrar Byrne ordered the Respondents to file and serve contentions of fact and law by 28 January 2008. (This was not achieved; the First Respondent's contentions are date‑stamped 12 February 2008).
Registrar Byrne also ordered the Applicant to file and serve contentions of fact and law by 4 pm on 11 February 2008.
The Applicant did not comply with that order but sought rather, when the proceeding was called on for hearing, to hand up contentions of fact and law, which had plainly not been prepared by the Applicant, whose command of English would not have enabled him to do so.
These contentions of fact and law had not been served on the Respondents. The Respondents’ counsel was plainly taken by surprise.
The Applicant initially sought an adjournment of the proceeding. He asserted, through the interpreter, that his lawyers had told him "last night" that they were not available to conduct the proceeding today. I asked him how long ago he had consulted these lawyers, who I inferred were the authors of the contentions of fact and law. The Applicant told me that he had first spoken to them about a month and a half ago; and, since the orders of the Court to list the matter were well in advance of that date, I pointed out that the lawyers must have known of this hearing date for some considerable time.
The Applicant asserted that the lawyers were parties who acted free of charge, and that he now wished to obtain other lawyers to assist him in his case.
In my view, the Applicant has had more than sufficient time to prepare his case. He has had, on one view, from October 2007 to do so. At the very least, he has had since the receipt of the Respondents’ application in November 2007, or, at the very worst, since December 2007 when the Court set this matter down for trial, to start to obtain legal representation. He has had possession of the First Respondent's contentions of fact and law since approximately 12 February 2008.
Furthermore, leaving aside the tardiness of the Applicant's preparation, there is, in my view, no utility to an adjournment, as the Applicant's case is hopeless. The contentions of fact and law of the First Respondent set out in a very helpful summary way the history of the protection visa application and the subclass TT435 Sri Lankan visa application made by the Applicant.
I note that the First Respondent is required to conduct himself as a model litigant, pursuant to the Attorney‑General's guidelines, and I have no reason to suppose that the factual assertions made as to the history of the litigation referred to in his contentions of fact and law are other than true.
From these facts and contentions, it is apparent that the Tribunal decision which is the subject of review in this case was concerned with the capacity of the Applicant to meet the essential criteria for the grant of a subclass TT435 visa on 31 July 1997, this being the date of the application that was refused by the MIRO which ultimately gave rise to this proceeding.
It is clear from the Applicant's own case that he did not enter Australia before 1 November 1993, this being an essential precondition to the issue of the subclass TT435 visa.
From the Tribunal's decision, which, as I say, was annexed to the Applicant's original affidavit, it is clear that the Tribunal proceeded on the footing that it was reviewing this subclass TT435 visa and determined the matter on that footing.
I accept the submission of the First Respondent that the Applicant's materials relating to fear of persecution and a possible ground of a refugee protection visa were therefore irrelevant. I accept that the Applicant's contentions of fact and law are, as the First Respondent submits, likewise, misconceived. It is clear from paragraph 1 of the Applicant's contentions of fact and law that he is asserting that the decision of the Tribunal was one:
… affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The materials in the Applicant's facts and contentions proceed on that footing.
This was not, however, an application for a protection visa. It was an application for a further subclass TT435 visa.
For these reasons, it is clear, in my opinion, that the Applicant's case is wholly incapable of being made out.
In the circumstances, the application must be dismissed and the Applicant must pay the First Respondent's costs.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 31 March 2008