Illukkumbura v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1715

FEDERAL COURT OF AUSTRALIA

Illukkumbura v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1715

SRI PARAKRAMA ILLUKKUMBURA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1881 OF 2005

EDMONDS J
22 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1881 OF 2005

BETWEEN:	SRI PARAKRAMA ILLUKKUMBURA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EDMONDS J
DATE OF ORDER:	22 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the applicant to file in Court the affidavit of S P Illukkumbura affirmed 22 November 2005.

2.Leave be granted to Mr Don Sisira Kumaragamage to represent the applicant for the purposes of the hearing of the application.

3.The application be dismissed.

4.The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1881 OF 2005

BETWEEN:	SRI PARAKRAMA ILLUKKUMBURA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EDMONDS J
DATE:	22 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE
(REVISED FROM THE TRANSCRIPT)

EDMONDS J:

1. This is an application for (1) a declaration that, pursuant to subs 195A(2) of the Migration Act 1958 (Cth) (‘the Act’), the Minister has a reason to think that it is in the public interest to grant a visa to the applicant; (2) an order pursuant to subs 195A(2) and s 33 of the Act that the Minister grant immediately a special purpose visa to the applicant to be effective until 28 days after the finality of proceedings No. 20089/05 of the Supreme Court of New South Wales.

2. The background to these proceedings is set out in the applicant’s submissions, an affidavit filed in Court by the applicant sworn 22 November 2005, and the respondent’s outline of submissions.  I briefly summarise that background from the respondent’s outline only because of its succinctness, but it appears that there is common ground as to the following matters.

3. On 6 April 2005 the applicant commenced proceedings in the Supreme Court of New South Wales, No. 20089/05, seeking $1 million in damages from the Minister by some unclear cause of action which alleged that an entitlement to such damages arose because the applicant accepted advice from a departmental officer which led to his inability to go to Canada.

4. On 1 July 2005 the Minister filed a notice of motion to strike out the Statement of Claim. On 7 September 2005 the applicant filed a notice of motion seeking orders that he be granted a visa under s 195A of the Act. On 14 September 2005 the Supreme Court upheld the Minister’s motion and struck out the Statement of Claim and on 26 September 2005 the Supreme Court dismissed the applicant’s notice of motion.

5. Section 195A of the Act relevantly provides:

   ‘195A Minister may grant detainee visa (whether or not on application)

   Persons to whom section applies

   (1)      This section applies to a person who is in detention under section 189.

   Minister may grant visa

   (2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

   …

   (4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.’

6. Section 33 of the Act relevantly provides:

   ‘33      Special purpose visas

   (1)There is a class of temporary visas to travel to, enter and remain in Australia, to be known as special purpose visas.

   (2)Subject to subsection (3), a non-citizen is taken to have been granted a special purpose visa if:

   (a)       the non-citizen:

   (i)        has a prescribed status; or

   (ii)is a member of a class of persons that has a prescribed status; or

   (b)       the Minister declares, in writing, that:

   (i)the non-citizen is taken to have been granted a special purpose visa; or

   (ii) persons of a class, of which the non-citizen is a member, are taken to have been granted special purpose visas.’

7. The Minister is under no duty even to consider a request to exercise a power under s 195A of the Act. There is thus no basis for the relief sought in par 1 of the Application. Section 33 applies only in respect of persons who have a prescribed status, who are members of a class that has a prescribed status or in respect of whom the Minister has declared that the person or class of persons of which he or she is a member is taken to have been granted a special purpose visa.

8. In my view the Minister has no power to grant a visa under s 33, let alone one of the kind sought by the applicant. The Minister is under no duty to make declarations under subs 33(2), let alone one of the kind sought by the applicant.

9. In all the circumstances, the application must be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:             5 December 2005

Applicant’s Representative:	Mr D S Kumaragamage by leave
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 November 2005
Date of Judgment:	22 November 2005