Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs

FEDERAL COURT OF AUSTRALIA

Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261

DON RANIL CHINTHAKA WEERASINGHE  v  MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V120 of 2003

RYAN J
19 MARCH 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V120 of 2003

BETWEEN:	DON RANIL CHINTHAKA WEERASINGHE Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	19 MARCH 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.        The applicant pay the respondent’s costs, to be taxed in default of agreement.

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	V120 of 2003

BETWEEN:	DON RANIL CHINTHAKA WEERASINGHE Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent

JUDGE:	RYAN J
DATE:	19 MARCH 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court an application under s 475A of the Migration Act 1958 (Cth) (“the Act”) and s 39B of the Judiciary Act 1903 (Cth) for the review of a decision of the Migration Review Tribunal (“the Tribunal”) affirming a refusal by a delegate of the respondent Minister to grant the applicant a Student (Temporary) (Class TU) (Subclass 573) visa.

2. The applicant arrived in Australia on 30 January 1998 on a student visa which was valid until 30 April 1999.  After his arrival, he successfully completed the course for a Certificate of Business at Melbourne Institute of Business Technology and then enrolled in a course moving to the degree of Bachelor of Business at Swinburne University of Technology (“Swinburne”).  From Semester 1 of 1999 to Semester 2, 2001 he presented for 22 subjects of which he passed 13 and failed 9.  In the meantime, he had been granted a further Student (Subclass 560) visa which was issued on 14 April 1999 and which expired on 15 March 2002.  On 12 March 2002, he applied for a Student (Subclass 573) visa.  That application was refused by a delegate of the Minister for non-compliance with Condition 8202 requiring satisfactory academic progress and with Condition 8501 requiring the maintenance of health insurance cover.

3. In the course of its reasons for affirming the delegate’s refusal to grant the applicant a Student (Subclass 573) visa in respect of the period after 15 March 2002, the Tribunal recounted the following findings;

   ’13.     On 12 April 2002 the visa applicant applied to the Tribunal for review of this decision (T1, f 2-7). He submitted that, during Semester 1 of 1999, he was suffering stress related headaches during the examination period. During Semester 2 of 1999 and Semester 1 of 2000, his parents were facing marital problems. His father was also involved in United National Party activities in Colombo during the Parliamentary elections, and in October 2000 his family's house was attacked and damaged. These incidents made it difficult to concentrate on his studies. On 4 March 2000…