Serasinge v Minister for Immigration
[2007] FMCA 1181
•26 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SERASINGE v MINISTER FOR IMMIGRATION | [2007] FMCA 1181 |
MIGRATION – Application doomed to fail – unable to satisfy condition of visa relation to date of entry into Australia.
| Applicant: | MAHAGAMA VIDANALAGE SERASINGE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 48 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 Respondent: | Ms Jayasinghe |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the minister's costs, fixed at $1950.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 48 of 2007
| MAHAGAMA VIDANALAGE SERASINGE |
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 21 December 2006. The applicant in this case arrived in Australia on 13 June 1996. In July 1997 he applied for a subclass 435 Sri Lankan (Temporary) (Class TT) visa.
One of the conditions for that visa type was that the applicant enter Australia on or before 1 November 1993. The applicant does not suggest that he entered Australia on or before 1 November 1993.
In the circumstances, it is simply not open to the applicant to receive a visa of the type the subject of the Migration Review Tribunal decision.
Regardless of the complaints that the applicant may make with regard to the process, it does not alter the fact that he can never be entitled to a visa under this category as a result of the date that he entered the country and the condition 435.213.
The applicant in his affidavit and application referred to this as an application for a protection visa. The applicant did apply for a protection visa on 30 June 1997 which was refused by the delegate on 17 December 1997 and the subject of a decision by the Refugee Review Tribunal on 17 December 1999. This was the subject of judicial review proceedings before Hartnett FM who dismissed the application on 19 October 2004. The matter was then on appeal to the Federal Court where North J dismissed the appeal on 31 May 2005. The applicant then sought special leave to appeal to the High Court which was dismissed on 20 October 2005.
The history of the protection visa application was outlined by counsel for the Minister and agreed with by the applicant. This explains his reference to claims for a protection visa. These claims, however, have been dealt with by the Refugee Review Tribunal and the courts.
The applicant also made submissions that he had been in Australia for 11 years and was concerned about having work rights and a work permit on a temporary visa. He says he is not in a position to go back to Sri Lanka.
In the material before me, it is apparent that the applicant can never succeed in obtaining a Sri Lankan (Temporary) (Class TT) visa due to the date that he arrived in Australia and the effect of clause 435.213. As a result, the proceedings must necessarily be futile and therefore ought to be dismissed.
I have considered whether the proceedings were intended to be proceedings relating to a protection visa. However, it is agreed that proceedings with regard to a separate protection visa application have already been litigated through this court, a Federal Court and the High Court. There therefore appears to be nothing in the application relating to a protection visa claim that would found a basis for judicial review of the application.
The submissions from the bar table concerning the applicant’s desire to work in Australia and the length of time he has been here, provide nothing to indicate a basis for judicial review of the conduct of the Migration Review Tribunal. These may well be factors that the Minister would consider in an application to exercise a discretion to grant a visa but are not matters upon which a judicial review application would be founded.
I therefore find that the application has no prospects of success and ought to be dismissed. I therefore dismiss the current application.
This is an application in which the Minister has been entirely successful. It was doomed to failure from the outset, as was apparent from the decision of the Migration Review Tribunal with regard to the visa condition and the date of arrival of the applicant in Australia. In these circumstances, it is appropriate that the applicant pay the Minister's costs. The costs sought are less than the scale amount and I find that they are reasonable
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: J.McLean
Date: 26 June 2007
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