Pathirana v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1051

FEDERAL COURT OF AUSTRALIA

Pathirana v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1051 MARLIN NILANTHA PATHIRANA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V 546 of 2004

RYAN J

9 AUGUST 2004

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 546 of 2004

BETWEEN: MARLIN NILANTHA PATHIRANA

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 9 AUGUST 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application for an order nisi be refused with costs.

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 V 546 of 2004

BETWEEN: MARLIN NILANTHA PATHIRANA

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 9 AUGUST 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 There is before the Court an application for an order nisi calling on the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), to show cause why a writ of prohibition should not issue prohibiting further proceedings in the Migration Review Tribunal ("the Tribunal") arising out of cancellation of the applicant's student subclass 573 visa ("the visa"). 2 The applicant also seeks a writ of certiorari to quash the decision of the Tribunal of 16 July 2003 affirming a decision of a delegate of the Minister to cancel the applicant's visa. The application for prerogative relief was commenced in the High Court and was remitted to this Court by Hayne J who, on 16 February 2004, ordered; '(1) The further proceeding in this application for an order nisi for writs of prohibition and certiorari be remitted to the Federal Court of Australia, Victoria District Registry. (2) The application for an order nisi proceed in that Court as if the steps already taken in the matter in this Court had been taken in that Court. (3) The Deputy Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court. (4) Costs of the matter,(including the costs of the application to the date of this order) be reserved to the Federal Court of Australia. 3 The affidavit in support of the application for an order nisi rehearsed facts almost all of which are common ground between the applicant and the Minister. The affidavit is not directed to the grounds on which it was claimed the proposed order nisi should be granted. Those grounds were; '(1) The decision made by the Second Respondents (the Tribunal)