Ekanayake v MIMIA was also heard on 22 September, 2005, in the High Court's original jurisdiction.
Without going into too much detail, this was a similar case to M51 and was discussed just before it. There were very similar facts, although the decision in question was that of the Migration Review Tribunal.
It seems that the Plaintiff had his student visa cancelled because his enrolment was supposedly terminated by the University of Melbourne for non-payment. His student visa was cancelled after this point. He submitted that he was enrolled at the time of the cancellation and, therefore, DIMIA had fallen into jurisdictional error.
Hayne J did not decide on the merits, rather on whether an extension of time should be granted, as again the Plaintiff's cert and mandamus claims were 7 and 11 months overdue. It was held that because the matter had been decided on its merits by the Federal Court, there could be no action in the High Court's original jurisdiction on the merits.
No extension was granted. Both this decision and M51/2005 were decided on the basis that ' [Constitutional or prerogative] writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.' This was taken from McHugh J's judgment in Re Commonwealth, Ex Parte Marks (2000) 177 ALR 491. (or here).
It seems a bit of a circular formulation to me, but there you go.
The other parallels I have noticed in these two cases are applications WAY out of time, as well as orders being made for costs. Also, it seems that when these cases are listed in the Federal Court of Federal Magis, the parties do not attend. This is a very preliminary view, but I would be interested to see what people thought about that. Access to justice??
Without going into too much detail, this was a similar case to M51 and was discussed just before it. There were very similar facts, although the decision in question was that of the Migration Review Tribunal.
It seems that the Plaintiff had his student visa cancelled because his enrolment was supposedly terminated by the University of Melbourne for non-payment. His student visa was cancelled after this point. He submitted that he was enrolled at the time of the cancellation and, therefore, DIMIA had fallen into jurisdictional error.
Hayne J did not decide on the merits, rather on whether an extension of time should be granted, as again the Plaintiff's cert and mandamus claims were 7 and 11 months overdue. It was held that because the matter had been decided on its merits by the Federal Court, there could be no action in the High Court's original jurisdiction on the merits.
No extension was granted. Both this decision and M51/2005 were decided on the basis that ' [Constitutional or prerogative] writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.' This was taken from McHugh J's judgment in Re Commonwealth, Ex Parte Marks (2000) 177 ALR 491. (or here).
It seems a bit of a circular formulation to me, but there you go.
The other parallels I have noticed in these two cases are applications WAY out of time, as well as orders being made for costs. Also, it seems that when these cases are listed in the Federal Court of Federal Magis, the parties do not attend. This is a very preliminary view, but I would be interested to see what people thought about that. Access to justice??
posted by Not my real name at 10:49 PM
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