Gamage v Minister for Immigration & Anor (No.3) [2010] FMCA 84 (15 February 2010)

Last Updated: 18 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAMAGE v MINISTER FOR IMMIGRATION & ANOR (No.3)

[2010] FMCA 84

MIGRATION – Migration Review Tribunal – student visa – applicant previously removed from Australia – show cause application.

Migration Act 1958 (Cth), ss.116(1)(b), 164 Migration Regulations 1994 (Cth), Schedule 8, Condition 8202(2)(a) Federal Magistrates Court Rules 2001 (Cth), r.44.12

Gamage v Minister for Immigration and Citizenship [2009] FCA 1373 Gamage v Minister for Immigration and Citizenship & Ors (No. 2) [2009] FMCA 1146 Gamage v The State of Western Australia [2008] WASCA 49 Gamage, In the matter of a proposed application for special leave [2009] HCATrans 305 Gamage, In the matter of a proposed application [2009] HCATrans 309 Mpunzwana v Minister for Immigration and Citizenship [2009] FMCA 901

Applicant:

INDRAJABANDU GAMAGE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 204 of 2009

Judgment of:

Lucev FM

Hearing date:

15 February 2010

Date of Last Submission:

15 February 2010

Delivered at:

Perth

Delivered on:

15 February 2010

REPRESENTATION

Applicant:

No appearance

Counsel for the Respondents:

Mr A. Gerrard

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs in the sum of $2,935 by 15 March 2010.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

PEG 204 of 2009

INDRAJABANDU GAMAGE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Factual and procedural background

1. The applicant is a citizen of Sri Lanka who first arrived in Australia on 28 January 1999 as the holder of a student visa valid until 17 January 2001.
2. The applicant remained lawfully in Australia until 8 March 2006 as a result of being granted a number of Bridging A visas and further student visas. The final Subclass 573 student visa was granted to the applicant on 6 October 2004, and was valid until 8 March 2006.
3. On 8 March 2006 the applicant's subclass 573 student visa was cancelled by a delegate of the Minister for Immigration and Citizenship[1] pursuant to s.116(1)(b) of the Migration Act 1958 (Cth)[2] on the basis that the applicant had failed to comply with condition 8202(2)(a) of the Migration Regulations 1994 (Cth),[3] which required the visa holder to remain enrolled in a registered course of study during the currency of the visa. The applicant was not enrolled in any course of study during the second semester of 2005.
4. On 14 March 2006 the Director of Public Prosecutions for Western Australia issued a criminal justice stay certificate in respect of the applicant as a result of the applicant being charged with two counts of indecent dealing with a child between the ages of 13 and 16 years, and two counts of aggravated sexual penetration without consent.
5. On 15 March 2006 the applicant was granted a criminal justice stay visa on the basis that there was a criminal justice stay certificate issued on 14 March 2006.
6. On 3 April 2007 the applicant was convicted on the two counts of indecent dealing and one count of sexual penetration. He was sentenced by the District Court of Western Australia to eight months imprisonment in relation to the two counts of indecent dealing, and was further sentenced to two years and four months imprisonment in relation to the sexual penetration conviction.
7. On 4 March 2008 the Western Australian Court of Criminal Appeal dismissed the applicant’s appeal against his conviction.[4]
8. On 31 July 2009 the Director of Public Prosecutions for Western Australia cancelled the criminal justice stay certificate in respect of the applicant. Pursuant to s 164 of the Migration Act that cancellation had the effect of cancelling the applicant’s criminal justice stay visa.
9. Following the cancellation of the applicant’s criminal justice stay visa he became an unlawful non-citizen, and upon completing his term of imprisonment on 2 August 2009 he was taken into immigration detention.
10. On 7 August 2009 the applicant lodged an application with the Migration Review Tribunal,[5] in respect of the decision made on 8 March 2006 to cancel his Subclass 573 student visa. The Tribunal made a decision on 19 October 2009 affirming the decision to cancel the applicant’s student visa.[6]
11. On 17 August 2009 the applicant lodged an application with the High Court for special leave to appeal his conviction. The High Court wrote to the applicant on 14 September 2009 advising that his application had been deemed abandoned. The applicant lodged a further application for special leave to appeal together with an application for an extension of time in which to make such an application. That application has yet to be determined.
12. On 12 November 2009 the applicant filed an application in the Federal Magistrates Court seeking review of the Tribunal Decision.
13. Officers of the Department of Immigration and Citizenship made arrangements for the applicant’s removal from Australia as an unlawful non-citizen on 16 November 2009 at 3.50pm (WST), and the applicant was advised of these arrangements on 13 November 2009.
14. On 14 November 2009 the applicant made an application to the Federal Magistrates Court seeking an order for an injunction restraining the Minister from deporting the applicant until further orders of the Court. That application was heard by this Court on 16 November 2009.[7]
15. On 16 November 2009 the Court made an order that the applicant's application for injunctive relief be dismissed. On the same day the applicant filed a notice of appeal in the Federal Court appealing the order of this Court dismissing the applicant’s application for an injunction, and seeking an urgent injunction restraining the Minister from removing the applicant at 3.50pm that day.
16. The applicant was not removed from Australia on 16 November 2009 and further arrangements were made for the applicant to be removed from Australia at 7.40am on Friday, 20 November 2009.
17. A hearing took place before a single judge of the Federal Court on 19 November 2009. The Federal Court indicated that although the matter was strictly not competent, it proposed to treat the substantive application as an application for leave to appeal. After hearing argument on the substantive application (treated as an application for leave to appeal) the Federal Court made orders that:
    • 1. The application for an injunction to restrain the first respondent from removing the applicant from Australia be dismissed.
    • 2. The application for leave to appeal from the refusal by Federal Magistrate Lucev to grant an injunction to restrain the first respondent from removing the applicant from Australia be dismissed.
    • 3. The applicant is to pay the costs of the first respondent, to be taxed if not agreed. [8]
18. On 19 November 2009 the applicant lodged an application with the High Court of Australia for leave or special leave to appeal from the judgment of the Federal Court given on 19 November 2009. The applicant sought an order, inter alia, restraining the Minister from removing the applicant from Australia.
19. On 20 November 2009 the High Court granted an interlocutory injunction restraining the applicant’s removal from Australia before 4:15pm Eastern Standard Daylight Saving Time on Tuesday, 24 November 2009.[9]
20. On 24 November 2009 the High Court refused the applicant's application for special leave to appeal.[10]
21. The Court is informed by Counsel for the respondents that:
    1. on 30 November 2009 the applicant filed a further application for special leave to appeal to the High Court, and that on the same day the High Court refused to issue the application; and
    2. on 1 December 2009 the applicant was removed from Australia.

The Tribunal Decision

22. The essential reasons for the Tribunal Decision are set out in this Court’s earlier decision.[11]
23. Critically, the Tribunal found that by virtue of not being enrolled in a registered course in semester 2 of 2005, the applicant had not complied with condition 8202(2)(a) of his visa and consequently a ground for cancellation pursuant to s116(1)(b) of the Migration Act was enlivened. The Tribunal also rejected the applicant’s claim that his non-compliance was due to exceptional circumstances beyond his control. The applicant claimed that his non-compliance arose from stress and psychiatric care connected to his criminal charges however the Tribunal noted that the evidence demonstrated the applicant’s medical consultations occurred in late 2006 at the earliest.

Whether an arguable case exists

24. The matter currently before the Court is in relation to the applicant’s application that the respondents show cause why relief should not be granted to the applicant.
25. At a hearing to determine whether an order to show cause should be made, an order will not be made and instead the proceedings will be dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth), if the applicant does not satisfy the Court that he has an arguable case against the respondents.[12]
26. Understandably in the circumstances, the applicant did not appear personally. He did not however seek to have a lawyer appear, or to appear by video or audio link from outside Australia. No further evidence or submissions were filed on behalf of the applicant.
27. The Minister contends that the application has no reasonable prospects of success and consequently the Court cannot be satisfied that the applicant has an arguable case.
28. In dismissing the applicant’s earlier application for injunctive relief this Court addressed all of the applicant’s numerous grounds of review.[13] Furthermore, this Court considered the Tribunal Decision generally. This Court found:
    • 20. The central findings of fact of the Tribunal were not impugned and they were findings of fact that were available to the Tribunal. They are findings of fact which do not disclose jurisdictional error and ought not be interfered with by this Court. Having regard to the High Court decisions in Plaintiff S157/2002 v Commonwealth of Australia and Minister for Immigration and Multicultural Affairs v Yusuf there would, in the Court's view, be no basis to set aside the Tribunal Decision on the grounds of jurisdictional error. The Tribunal correctly set out its task, the relevant facts and the applicant's claims and evidence. There was no error in the Tribunal's statement of the law and no misdescription or error in the Tribunal's description of the applicant’s claims. Nothing in the Tribunal Decision indicates that it failed to have regard to relevant considerations or misunderstood its task.[14]
29. Albeit that those findings were made in respect of whether there was a serious issue to be tried the Court can rely upon them in these proceedings, and in the absence of further evidence or submissions from the applicant, has come to the view that the same findings ought to be made today on the show cause application. The Court’s view is reinforced by the fact that the High Court considered the findings and found that the approach taken by this Court “seems not to be open to criticism” and that there was “no reason” to conclude that this Court’s judgment in Gamage (No. 2) was “infirm”.[15]
30. Therefore, for the reasons enunciated by this Court in Gamage (No. 2)[16] the applicant cannot establish that the Tribunal Decision is affected by jurisdictional error.

Conclusion and orders

31. The Court finds that the Tribunal Decision is not affected by jurisdictional error. Therefore the application will be dismissed.
32. The applicant is to pay the first respondent’s costs fixed at $2,935 by 15 March 2010.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: S. Gough

Date: 15 February 2010

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[1] “Minister”.
[2] “Migration Act”.
[3] “Migration Regulations”.
[4] Gamage v The State of Western Australia [2008] WASCA 49.
[5] “Tribunal”.
[6] “Tribunal Decision”.
[7] Gamage v Minister for Immigration and Citizenship & Ors [2009] FMCA 1146 (“Gamage (No. 2)”).
[8] Gamage v Minister for Immigration and Citizenship [2009] FCA 1373.
[9] Gamage, In the matter of a proposed application for special leave [2009] HCATrans 305.
[10] Gamage, In the matter of a proposed application [2009] HCATrans 309 (“Gamage – High Court (No .2)”).
[11] Gamage (No. 2) at para.5 per Lucev FM.
[12] Mpunzwana v Minister for Immigration and Citizenship [2009] FMCA 901 at para.3 per Cameron FM.
[13] Gamage (No. 2), paras.7-20 per Lucev FM.
[14] Gamage (No. 2), para.20 per Lucev FM.
[15] Gamage – High Court (No. 2).
[16] Gamage (No. 2), paras.7-20 per Lucev FM.