FEDERAL COURT OF AUSTRALIA

De Silva v Minister for Immigration & Citizenship [2007] FCA 1677

PANAGODAGE MANOJINI DE SILVA v MINISTER FOR IMMIGRATION & CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID632 OF 2007

PRIYANKARAGE UPUL DE SILVA v MINISTER FOR IMMIGRATION & CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID633 OF 2007

JESSUP J

30 OCTOBER 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The Notice of Appeal be treated as an application for leave to appeal.

2.                  The application be dismissed.

3.                  The applicant pay the costs of the respondent Minister fixed in the sum of $3000.

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

THE COURT ORDERS THAT:

1.                  The Notice of Appeal be treated as an application for leave to appeal.

2.                  The application be dismissed.

3.                  The applicant pay the costs of the respondent Minister fixed in the sum of $3000.

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

REASONS FOR JUDGMENT

1                     Before the court are two appeals, to the competency of each of which the respondent Minister has objected. 

2                     What I will call the first appeal is that of Mr Priyankarage Upul De Silva, and was lodged on 16 July 2007 in relation to a judgment of the Federal Magistrates Court given on 26 June 2007.  In that judgment, the Federal Magistrate, acting pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules (2001) (Cth), dismissed an application by Mr De Silva for an order to show cause why a remedy should not be granted pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Migration Review Tribunal (“the Tribunal”) made on 18 December 2006 and handed down on 9 January 2007.  In that decision the Tribunal affirmed an earlier decision of a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs, made on 16 January 1997, to refuse Mr De Silva a Sri Lankan (Temporary) (Class TT) visa.

3                     The essence of the Tribunal’s decision was that when he applied for that visa on 30 December 1996, Mr De Silva was then the holder of a Student Subclass 560 visa which was valid until 31 July 1998.  That circumstance made relevant one of the criteria upon which the granting of a visa of the kind for which Mr De Silva applied depended pursuant to regulations made under s 31(3) of the Act.  The visa applied for was the subject of subclass 435 in the regulations, and regulation 435.214 made it a criterion that the applicant not be the holder of a visa other than a subclass 435 visa, having effect on or after 31 July 1997.  Clause 435.21 itself was introduced by the expression, “Criteria to be satisfied at time of application”, which made it a criterion for the grant of such a visa, not simply that the applicant not be the holder of some other kind of visa having effect on or after 31 July 1997, but that he or she not be the holder of such a visa as at the date of his or her application for the visa in question.

4                     The Tribunal found as a fact, and Mr De Silva accepted before me in the submissions which he made today, that at the time of his application for a 435 visa, as it has been called, he was the holder of a student visa.  In the view of the Tribunal, this made it impossible for the delegate to have granted Mr De Silva a visa of the kind which he sought.  Without considering any other matters, including any discretionary matters which may otherwise have been relevant, the Tribunal agreed with the view of the delegate that the visa could not be obtained by Mr De Silva as a matter of eligibility, and affirmed the decision under review.

5                     By application made on 9 February 2007, Mr De Silva applied in the Federal Magistrates Court for an order to show cause in relation to the decision of the Tribunal.  In his application, he relied upon one ground only, namely, that that decision had been made without jurisdiction, or was affected by an error of jurisdiction, the particulars of which were expressed as follows:

I say the decision maker from DIMIA was wrong when he refused me the grant of a subclass 435 visa in 1997, as my visa was cancelled on 14 January 1997 and it had no effect after 31 July 1997.

The event to which Mr De Silva referred in those particulars was the cancellation on 14 January 1997 of his student visa.  It is true that it was not until after 14 January 1997 that the original delegate decided that Mr De Silva could not be granted a 435 visa and that at the time of that decision, Mr De Silva was not the holder of another visa.  However, as the regulations made clear, the time at which satisfaction of the relevant criterion was to be assessed was not the date of the decision to grant or to refuse the application for a visa, but the date upon which the application for the visa had been made.

6                     In his reasons for judgment, given on 26 June 2007, the Federal Magistrate noted that Mr De Silva was, at the time of his application for a visa, the holder of a student subclass 560 visa which was valid until 31 January 1998.  His Honour added that Mr De Silva was not therefore entitled to apply for a 435 visa as a result of the criterion in clause 435.214 of the regulations.  Although the Magistrate may not have been, strictly speaking, correct when he said that Mr De Silva was not entitled to apply, I think the sense of his Honour’s reasons is clear enough, namely, that because Mr De Silva held a student visa at the time of his application for a 435 visa, he was not eligible for the grant of the latter.  The Federal Magistrate continued:

Even if the tribunal were wrong in this regard, the applicant is not entitled to 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.

After referring to certain personal circumstances pertaining to Mr De Silva, the Federal Magistrate continued:

The limit of my power is to determine whether or not the decision of the Migration Review Tribunal decicion 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 is 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.

7                     Counsel for the respondent Minister conceded that the Magistrate’s reference to the cut-off date of 1 November 1993 was in error and that the criterion to which his Honour was there intending to refer had no application to the circumstances of Mr De Silva.  Although the Federal Magistrate noted, as I have said above, that Mr De Silva was not entitled to apply for a 435 visa because he held a student visa at the time of his application, his disposition of the application before him appears, on my reading of his reasons, to depend substantially upon his Honour’s perception that the cut-off date of 1 November 1993 applied in the circumstances before him, and only in an alternative and rather secondary way upon the criterion set out in clause 435.214. 

8                     The first matter which I should consider is whether the appeal is competent.  I take the view that an order dismissing an application for an order to show cause, pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules is an interlocutory order within the meaning of s 24(1A) of the Federal Court of Australia Act 1976 (Cth).  In this respect, I refer to Re Luck (2003) 203 ALR 1, to Rana v University of South Australia (2004) 136 FCR 344, and to a judgment I gave in SZKCV v Minister for Immigration and Citizenship [2007] FCA 1201 at [3].  The judgment of the Federal Magistrate in the present case was, in my view, interlocutory, and an appeal therefrom was not competent in the absence of leave having been sought and obtained.  From the submissions made by Mr De Silva, it is apparent that he was unaware of the requirement which lay upon him to seek and obtain leave in the circumstances of his case and, as a lay person, was unsurprisingly ill-equipped to handle the technical issues involved.  In the circumstances, I indicated that I would be prepared to treat his purported appeal as an application for leave.  That being done, the questions which arise are whether, in all the circumstances, the decision of the Federal Magistrate is attended with sufficient doubt to warrant it being reconsidered on appeal and, if so, whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 -400.

9                     For reasons which I have attempted to explain, it does appear as though the Federal Magistrate in the present case confused the criterion which was applicable to Mr De Silva’s situation with the criterion which was apparently applicable in a number of other cases which come before that court from time to time.  I think that error has been demonstrated on the part of the Federal Magistrate, in that he disposed of the matter before him by reference to an inapplicable criterion in the regulations.  I recognise that a broad reading of the Magistrate’s reasons would disclose that he took the view that Mr De Silva was in any event disentitled to the grant of a 435 visa for reasons which fell properly within clause 435.214 of the regulations, but for the purposes of the first limb of the test in Decor Corporation, I think that the more important question relates to the basis upon which the Federal Magistrate in fact disposed of the application before him, rather than to his alternative formulation.

10                  The next question which arises is concerned with the possibility of substantial injustice.  It is at this level that I think that Mr De Silva is in more difficulty.  For reasons set out above, Mr De Silva’s application for a visa of the kind which he sought could not have succeeded.  The Tribunal so held, and my reading of its decision has left me with no uncertainty as to the approach which it took to its task.  It is clear that the Tribunal considered the application for a visa on its merits and in accordance with the law which it rightly recognised was applicable to such an application.  Not only was it acting entirely within jurisdiction, but it applied the relevant law in a way of which, in my view, no-one could be critical. 

11                  I take the view then that there would be no prospect of substantial injustice if leave to appeal were refused, substantially because the inevitable result of any judicial review of the decision of the Tribunal would be that remedies of the kind sought by Mr De Silva would be declined.  I propose, therefore, in Mr De Silva’s case, to order that his Notice of Appeal be treated as an application for leave to appeal and that leave to appeal be refused.

12                  The second appeal which comes before the court was lodged on 8 October 2007 by Mrs Manojini Panagodage De Silva.  She is the wife of Mr De Silva, with whose circumstances I have just dealt.  Mrs De Silva appeals from a judgment of the Federal Magistrates Court given on 26 June 2007, in which her application for an order to show cause was dismissed pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules.  That application sought to challenge a decision of the Tribunal made on 6 December 2006 and handed down on 3 January 2007, pursuant to s 476 of the Act.  The Tribunal affirmed a decision which had been made by a delegate of the Minister on 5 August 1997 to refuse Mrs De Silva’s application for a Sri Lankan (Temporary) (class TT), subclass 435, visa.   At the time of that application, it was a criterion for the grant of such a visa that the applicant have entered Australia on or before 1 November 1993, as the holder of an entry permit or an entry visa which had the effect as if it were an entry permit.  The Tribunal held, as a matter of fact, and it has not since been contested, that Mrs De Silva did not satisfy that criterion.  Accordingly, it affirmed the decision of the delegate not to grant the visa as sought by Mrs De Silva upon that single ground.

13                  In her application to the Federal Magistrates Court under s 476 of the Act, Mrs De Silva relied upon a single ground, which was that the decision of the Tribunal was made without jurisdiction, or was affected by an error of jurisdiction, particularised as follows. 

I say that there has been a major change in the civil war in Sri Lanka, in that the peace accord that was in place has been broken and there is now widespread civil violence in Sri Lanka.  The tribunal should have been well aware of the current situation in Sri Lanka and has failed to take this very important factor in account before making its decision.

In his reasons for judgment, given on 26 June 2007, the Federal Magistrate said:

An essential condition of the Sri Lankan (temporary) (class TT) visa is contained in clause 435.213 which requires that the applicant have entered Australia on or before 1 November 1993.  The applicant, on her own case, did not enter Australia on or before 1 November 1993.  She can therefore never be entitled to a visa of this type under the regulations.  As a result, her application for this visa type is necessarily doomed to fail.  I therefore find that the judicial review of this decision is futile and can never ultimately succeed before the tribunal.

14                  For reasons which I have explained earlier in relation to Mr De Silva’s application, I consider that an order of the kind made by the Federal Magistrate in Mrs De Silva’s case was interlocutory, and required leave to appeal.  The respondent Minister has filed a notice of objection to competency but, as in the case of Mr De Silva, I am prepared to treat the purported appeal by Mrs De Silva as an application for leave to appeal.  Applying the principles for which Decor Corporation is authority, nothing put to me today has cast any doubt upon the correctness of the Federal Magistrate’s judgment.  Neither have I been able to perceive any, even arguable, source of error in his Honour’s reasons. 

15                  It is uncontested that Mrs De Silva entered Australia after 1 November 1993, and that an essential criterion for the grant of a visa, of the kind which she sought, was that the applicant had entered Australia on or before that date.  As the Federal Magistrate observed, a visa of the kind which she sought simply could not be granted to her in the circumstances.  For that reason I am not persuaded that the Federal Magistrate’s decision is attended by sufficient doubt to warrant its being reconsidered on appeal.  The decision below was clearly correct.

16                  I will refuse the application for leave to appeal, and make the same orders as I have indicated in Mr De Silva’s case. 

Associate:

Dated:         30 October 2007