Muthulingham Sivanantharajan v Minister for Immigration, Local Government & Ethnic Affairs

[1989] FCA 866

IN TEE FEDERAL COURT OF AUSTRALIA

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GENERAL DIVISION	)	No. G 95 of 1989
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NEW SOUTH WALES DISTRICT REGISTRY )

Re:	MUTHULINGHAM SIVANANTRARAJAN
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Applicant

And:	MINISTER FOR IMMIGRATION, LOCAL
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GOVERNMENT AND ETRNIC AFFAIRS

Respondent

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CORAM: Einfeld J.

-	DATE : 3 March 1989
PLACE: Sydney

EX-TEMPORE JUDGMENT

This matter comes before the court this morning in very urgent circumstances following upon an order I made at about 6.00pm last Friday just as the applicant was being deported from Australia. I was informed

ii at the time that the order was sought to prevent that deportation, that

the applicant was either on board or about to board an aircraft
departing from Sydney airport.

situation.

Since his arrival in Australia on 11 December 1987, he has been held in custody under section 36A of the Migration Act, which means that he has been in custody in Australia for by now for some 16 months. I do not blame anyone for this, but it really points up a very unsatisfactory

The applicant is a Sri Lankan citizen who was apprehended at Sydney airport, following some problems concerning the circumstances of his arrival in Australia. These included the revelation that he had obtained a visitor's visa on false papers and false representations to the Australian Righ Commission in Singapore. It then became clear that what the applicant was seeking was permanent residence in Australia either on humanitarian grounds or as refugee. It also became clear that if he had been granted resident status he would have sought and was

L intending to seek permission to bring his family from Sri Lanka.

The Minister's consideration of this matter included two significant determinations for present purposes. One was to recognize that the security situation in Sri Lanka in 1988 was uncertain and in many respects dangerous. The Minister's option of deporting the applicant, and I use the word deport in a very general sense because it is not really applicable to 36A custody, was by the Minister's personal decision delayed pending the Sri Lankan presidential and subsequent parliamentary elections in 1988 for the purpose of seeing whether the

L security situation deteriorated or improved. Following upon those

events, the Minister decided that there was no further reason for the

applicant to remain in Australia and thereupon arranged to have him	removed from Australia.
In general terms the applicant claims that to return him to Sri Lanka would be to subject him at least to persecution and possibly to death. Because of that claim, I granted the injunction last Friday so that the facts of his case could be examined. As very little information was available at the time of the injunction, I ordered expedition of the hearing and fixed it for today. The applicant having already been in custody for so long, it seemed to me that this matter required urgent resolution. The application for order of review before the court today was filed on 28 February pursuant to directions I gave following upon the injunction. It claims relief in relation to the Minister's refusal to grant the applicant a temporary entry permit and makes complaints of a fairly technical nature as to the reasons why that relief should be granted.
As I read the Minister's relevant decision in the matter, he did not in

ii

substance refuse a temporary entry permit per se. Be refused a temporary entry permit on the basis of his reading of the material submitted by and on behalf of the applicant, that there would be no purpose for a temporary entry permit because the applicant could not satisfy him that he was entitled to permanent residence. That is still the Minister's position today. As with his earlier delay in deporting the applicant, it is a commendable stance because it takes no technical objection based either on the fact that the applicant does not have a temporary entry permit, which is a prerequisite for permanent residence

L under section 6A of the Migration Act in which this application falls,

nor on the fact that the applicant has only a section 36 presence in

Australia. The consequence of that stance is that the parties are not	really at issue in relation to the temporary entry permit. What the
Minister says is that he would grant a temporary entry permit and would have already done so if the applicant had been able to make out any sort of arguable case that he was entitled to permanent residence.
Accordingly it does not seem to me that there would be any point in pursuing the application for order of review which is presently before the court. Even if the application were upheld and the Minister accepted a decision of the Court in favour of a temporary entry permit, it would merely provide the springboard for him to come to the same conclusion again. This would not be a conclusion which would fly in the face of any view of the Court, because the Court under those circumstances would not have even reviewed seriously the issue of entitlement to permanent residence. As a result, I have raised this dilemma with the parties this morning, and suggested that the judicial review jurisdiction of the court should not be used for peripheral applications and certainly not in this type of case. There is enough technicality in the law as it is without having cases conducted which do not get to the real issue which divides the parties.
Counsel for the Minister frankly and commendably advised me that he had
come here with instructions to fight a case which really did get to the heart of the matter of the applicant's possible right to permanent residence. The solicitor for the applicant is also ready to deal with such a case and quite rightly disavows any intent to conduct limited or technical litigation which will do nothing to resolve Mr

L Sivananthara janls status in Australia.

Accordingly, I propose to proceed with this application on that basis.

I direct that the applicant bring in an amended application for an order

of review which embraces the matters which are now to be litigated at the heart of this dispute. There is to be supplied at some time today, if not a full amended application for order of review, at least the amended orders which are now to be sought in this litigation so that counsel for the Minister will be able to address the true issues being litigated. It is a consequence of this course that the Minister continue to adopt the course that he has thus far adopted, namely not to take objection to an examination of the applicant's entitlement to permanent residence either on the grounds that he does not presently hold a temporary entry permit or that there are features about his section 36A status which give rise to jurisdictional problems. In both of those instances the Minister has clearly waived consideration of such issues up to date and I am led to believe by his counsel that there will be no change in that attitude during the course of this case.

I certify that this and thrt

FaC)= nf :he

preceding pages are a tru? C:PV
Refrsons for Judgment herei.1 of his Honour

I

Justice Einfeld

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Associate

Ta4'% I