Wijesinghe v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 On 9 July 2007, Mr Rohan Nishnath Wijesinghe and Ms Muthukada Anupama Perera each filed a Notice of Appeal from a judgment of the Federal Magistrates Court given on 22 June 2007. By that judgment, the Federal Magistrate, acting under r 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth), dismissed separate applications which had been filed in that court by Mr Wijesinghe and Ms Perera, pursuant to the jurisdiction of that court under s 476 of the Migration Act 1958 (Cth) ("the Act"), for an order that the respondents show cause why a remedy should not be granted in respect of decisions made by the Migration Review Tribunal ("the Tribunal") on 4 January 2007, in each case to affirm a decision of a delegate of the respondent Minister not to grant a Sri Lankan (Temporary) (Class TT) visa to the appellant concerned. 2 Mr Wijesinghe and Ms Perera, to whom I shall refer as the appellants, are citizens of Sri Lanka, and are husband and wife. They entered Australia on 29 January 1996 under tourist visas. Each was granted a subclass 435 Sri Lankan visa on 8 February 1996, and again on 17 July 1996. On 31 July 1997 (the date upon which the visas granted on 17 July 1996 expired), the appellants applied for a further subclass 435 Sri Lankan visa. Each such application was refused on 7 August 1997 because it was a requirement for the grant of a 435 visa that - … the applicant entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa which had effect as if it were an entry permit. Since the appellants did not enter Australia on or before 1 November 1993, their applications for 435 visas were refused. 3 There was, thereafter, a substantial interregnum, apparently due to certain proceedings in the High Court. On 23 November 2005, the appellants were re-notified of the delegate's decision refusing to grant them visas. On 13 December 2005, the appellants applied to the Tribunal for a review of the delegate's decision. 4 By correspondence dated 16 October 2006 addressed to each appellant, and acting pursuant to s 359A of the Act, the Tribunal informed him and her as follows: The Tribunal has information that: - You first entered Australia on 29 January 1996 as the holder of a subclass 676 tourist visa. This information is relevant to the review because it is a requirement for the grant of a subclass 435 Sri Lankan visa that you entered Australia on or before 1 November 1993 as the holder of a visa or entry permit. The Tribunal will therefore have no alternative but to affirm the decision under review. The letter required that any response be received by 22 November 2006, adding that any request for additional time in which to respond would need to include reasons for the extension, and be received before 22 November 2006. 5 By correspondence dated 19 November 2006, but received by the Tribunal on 24 November 2006, Mr Wijesinghe, writing on behalf of himself and Ms Perera, said that they were unable to provide any information at that time, because of the hard and restless time which they were experiencing with their baby who had been born on 24 October 2006. By correspondence dated 29 November 2006 addressed to each appellant, the Tribunal refused the extension of time requested. Each such letter included the following: The Tribunal has decided not to grant an extension of time to comment because the visa was refused on the basis that you did not enter Australia on or before 1 November 1993, and the outcome of the Tribunal review would not be affected by any additional information which you may provide. 6 Since the appellants had not provided any comments as requested under s 359A of the Act within the time limited by the Tribunal's letter, the Tribunal took the view that it might make its decision without taking any further action to obtain the appellant's views, pursuant to s 359C(2) of the Act, and that the appellants were not entitled to appear before the Tribunal, pursuant to s 360(3) of that Act. The Tribunal proceeded to carry out a review of the decision to refuse the appellants' applications for visas. It determined the matter wholly by reference to the requirement that an applicant for a 435 visa must have entered Australia before 1 November 1993, and to what appeared to be the undoubted circumstance that the appellants did not do so. It held that the appellants did not "satisfy an essential criterion" for the grant of the visas which they sought, and that it had no discretion to take into account their current circumstances in Australia. 7 In their applications in the Federal Magistrates Court, the appellants each relied upon the following grounds: