Wasantha v Minister for Immigration and Multicultural

FEDERAL COURT OF AUSTRALIA

Wasantha v Minister for Immigration & Multicultural
Affairs [1999] FCA 1158

GAMINI WASANTHA v PHILLIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

AG69 of 1997

FINN J
20 AUGUST 1999
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

AG69 OF 1997

BETWEEN:	GAMINI WASANTHA Applicant
AND:	PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	FINN J
DATE OF ORDER:	20 AUGUST 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.        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

AUSTRALIAN CAPITAL TERRITORY

 DISTRICT REGISTRY

AG69 OF 1997

BETWEEN:	GAMINI WASANTHA Applicant
AND:	PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FINN J
DATE:	20 AUGUST 1999
PLACE:	CANBERRA

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant, Gamini Wasantha, as representative of all members of the Sri Lankan Humanitarian Entrants (Subclass 435) Association has sought declarations that reg 7.1 of the Migrations Regulations (Amendment) No 184 of 30 June 1997 and reg 10 and reg 12 of the Migration Regulations (Amendment) No 279 of 1 October 1997 in so far as these regulations relate to Sri Lanka are invalid, together with associated relief.

2. This proceeding is one of a number of this character that have been instituted in this Court.  In De Silva v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 355 the Full Court of this Court upheld the validity of these regulations when challenged on grounds that largely overlap those raised in the present application.

3. The applicant now concedes that, as a result both of De Silva’s case and of Macabenta v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 465, four of the six grounds of challenge relied upon are now unarguable. The remaining two that he wishes to pursue are that:

   “(iv)    The making of the Regulations in requiring the Applicant to have entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa which had effect as if it were an entry permit amounts to a breach of the rules of natural justice as the Applicant had a legitimate expectation that the Respondent would have considered the on going civil war and situation of political unrest in Sri Lanka before extending the subclass 435 visa for only those who arrived in Australia before 1 November 1993.

   …

   (vi)     The making of the Regulations in requiring the Applicant to have entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa as if it were an entry permit is contrary to the International Covenant on Civil and Political Rights to which Australia is a signatory.”

4. The respondent in turn has moved for an order under O 20 r 2 of the Federal Court Rules