FEDERAL COURT OF AUSTRALIA

Kodagodage v Minister for Immigration and Multicultural Affairs [2001] FCA 502

Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906, (2000) 100 FCR 495 applied

Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 applied

WIMALASIRI RANAWEERA KODAGODAGE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 124 OF 2001

MARSHALL J

MELBOURNE

2 APRIL 2001

THE COURT ORDERS THAT:

1.                  The application for an order of review dated 14 February 2001 be dismissed.

2.                  The applicant pay the respondent’s costs of and incidental to the respondent’s motion and the proceeding generally.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 14 February 2001, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal (“the RRT”) made on 21 December 2000. The RRT’s decision affirmed an earlier decision of a delegate of the respondent refusing the applicant a protection visa.

2                     It appears to me that the applicant’s initial application for a protection visa was not valid because certain critical questions on the application were left unanswered. Before the matter went to the RRT, a statement answering those critical questions was delivered to the respondent’s department.

3                     On 2 April 2001, the Court heard a notice of motion issued by the respondent inviting the Court to dismiss the application for judicial review. The solicitor for the respondent argued that the application should be dismissed on the basis that allowing the application was inconsistent with Full Court authority. The authorities referred to were Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 (“Li”) and Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906, (2000) 100 FCR 495 (“Yilmaz”). The solicitor for the applicant acknowledged the weight of these authorities. At page 2 of the transcript the solicitor for the applicant said:

“Your Honour, the applicant obviously can’t take any issue with the law as it currently stands…And naturally a single judge of this court is bound by Li Wen Han and also of course the majority judgment in the matter of Yulmaz (sic).”

4                     Ultimately, the solicitor for the applicant conceded that in light of Li and Yilmaz the application could not succeed.

5                     Consequently, I considered in the circumstances that I should order upon the motion of the respondent to dismiss the proceedings as follows:

1.      The application for an order of review dated 14 February 2001 be dismissed.

2.      The applicant pay the respondent’s costs of and incidental to the respondent’s motion and the proceeding generally.

Associate:

Dated:              2 May 2001