Gunawardene v Minister for Immigration and Multicultural Affairs

[2000] FCA 1294

FEDERAL COURT OF AUSTRALIA

Gunawardene v Minister for Immigration & Multicultural Affairs
[2000] FCA 1294

NO QUESTION OF PRINCIPLE

Migration Regulations 1994 (Cth) reg 2.08

SAMANTHIKA NILMINI GUNAWARDENE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 351 of 2000

MARSHALL J
MELBOURNE
15 SEPTEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 351 of 2000

BETWEEN:	SAMANTHIKA NILMINI GUNAWARDENE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	15 SEPTEMBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The application be dismissed 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 351 of 2000

BETWEEN:	SAMANTHIKA NILMINI GUNAWARDENE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	15 SEPTEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application by Mrs Gunawardene for an order of review in respect of a decision of the Refugee Review Tribunal (“RRT”) to refuse to grant Mrs Gunawardene a protection visa. The decision of the RRT was made on 14 April 2000. On the same day, the RRT also refused the application of Mrs Gunawardene’s husband for a protection visa.

2. Both applications before the Court were heard together. The reasons for judgment in this matter should be read together with the reasons for judgment in Matter No. V350 of 2000 which were delivered immediately before these reasons were delivered.

3. There is no special aspect of Mrs Gunawardene’s application which places it in any different position from that of Mr Gunawardene. Counsel for the parties accept, and I agree, that the result in one case must govern the result in the other.

4. Counsel for the respondent raised an additional issue in this proceeding that would have required determination if Mrs Gunawardene’s application had otherwise been successful. The issue does not require determination and I shall not set out a view on it. However, I should record that it was submitted by counsel for the respondent that a child born to Mrs Gunawardene and her husband (after the claim for refugee status was made) was not covered by the application before the RRT. Reliance was placed on Regulation 2.08 of the Migration Regulations 1994 (Cth) in support of that submission. Counsel for Mrs Gunawardene submitted that a child of claimants for refugee status born after the claim is made is covered by the claim until the RRT’s decision and not until the decision of the delegate as was contended for by the respondent. That issue must await another day for resolution.

5. Having regard to the reasons for judgment given earlier today, it follows that this application must also be dismissed, with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             15 September 2000

Counsel for the Applicant:	Miss S Moore (who appeared pro bono)
Counsel for the Respondent:	Mr C Fairfield
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 September 2000
Date of Judgment:	15 September 2000