Kuruwitage v Minister for Immigration and Citizenship [2007] FCA 795

FEDERAL COURT OF AUSTRALIA

Kuruwitage v Minister for Immigration and Citizenship [2007] FCA 795 Kuruwitage v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL VID 212 OF 2007

MIDDLETON J

21 mAY 2007

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 212 OF 2007

BETWEEN: Chandra Lal Padmasiri Kuruwitage

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: middleton j DATE OF ORDER: 21 May 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application for leave to file and serve out of time be dismissed. 2. The applicant pay the first respondent's costs of the proceeding. 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 VID 212 OF 2007

BETWEEN: Chandra Lal Padmasiri Kuruwitage

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: middleton J

DATE: 21 MAy 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application for leave to file and serve out of time an appeal from a judgment of a federal magistrate dated 19 February 2007: Kuruwitage v Minister for Immigration & Anor [2007] FMCA 185. In his decision, the federal magistrate dismissed an application to have an application for review dismissed under r 13.03A of the Federal Magistrate Court Rules 2001 (Cth).

PROCEDURAL BACKGROUND 2 The applicant is a citizen of Sri Lanka who first entered Australia on 17 June 1996. On 1 August 1997 the applicant applied for a Sri Lankan (Temporary) (Class TT) subclass 435 visa, which was refused by a delegate of the first respondent on 7 August 1997. The second respondent ('the Tribunal') affirmed the decision of the delegate on 30 October 2006, noting that, in accordance with cl 435.213 of Sch 2 to the Migration Regulations 1994 (Cth) ('the Regulations'), it was a condition of the relevant visa that the applicant had entered Australia on or before 1 November 1993 as the holder of an entry permit or its equivalent. 3 The applicant applied to the Federal Magistrates Court for review of the delegate's decision, but failed to attend the scheduled hearing on 31 January 2007. The matter was subsequently dismissed pursuant to r 13.03A of the Federal Magistrates Court Rules 2001 (Cth). 4 Subsequently, on 7 February 2007, the applicant filed an application with the Federal Magistrates Court for reinstatement together with an affidavit in support. In his affidavit, the applicant claimed that he had not been aware the matter had been given a first court date, and furthermore, he stated he had been away on holidays when the matter was listed, and only became aware of the hearing date when he returned home. The learned federal magistrate correctly stated that it is for the Court to determine whether, on the material before it, an applicant has provided a reasonable explanation for non-attendance at Court, and found, in the circumstances, that there was no reasonable excuse for the applicant's non-attendance on 31 January 2007. 5 His Honour also went on to consider whether the applicant had an arguable case, and concluded that the applicant did not have an arguable case that would support reinstatement of the application. In reaching this conclusion, his Honour noted that the requirements for the relevant visa contained in the now-repealed cl 435.213 clearly stated that a successful applicant must have entered Australia on or before 1 November 1993. As the applicant did not arrive in Australia until 17 June 1996, he therefore did not meet this requirement, and the federal magistrate found that the Tribunal had acted appropriately by dismissing the matter and affirming the delegate's decision.