018-NLR-NLR-V-63-SETHU-RAMASAMY-Petitioner-and-A.-E.-G.-MOREGODA-Controller-of-Immigration-and.pdf
GTTNASEKARA, J.—Sethu llamasamy v. Moregoda
115
1961Present : Gunasekara, J.SETHXJ RAMASAMY, Petitioner, and A. E. G. MOREGODA(Controller of Immigration and Emigration), Respondent
S. C. 457—Application for a Mandate in the Nature of a Writ
of Mandamus
Deportation order—Subsequent authorisation by Prime Minister for issue of visa todeported person—Power of Controller to cancel such visa—Immigrants and Emi-grants Act, No. 29 of 1948, as amended by Act No. 16 of 1955, ss. 5 (1), 11 (2) (g),12, 14, 17, 31 (1), 31 (3)—Regulations 5, 20 (1)—Mandamus—Futility of resultas ground for refusal.
Where a person deported upon an Order made in terms of section 31 of theImmigrants and Emigrants Act is subsequently authorised by the PrimeMinister (who is also the Minister of 1 )efence and External Affairs) to be grantedvisas to re-enter and reside in Ceylon, such visas, athough they are bound to boissued by the Controller, may be cancelled later by the Controller in hisabsolute discretion by virtue of regulation 20 (1) of the Regulations madeunder the Immigrants and Emigrants Act.
A mandamus wiJl not be granted when it appears that it would be futilein its result.
Application for a writ of mandamus directing the Controller ofImmigration and Emigration to issue to the petitioner a residence visa for2 years in terms of section 14 of the Immigrants and Emigrants Act.
S. Nadesan, Q.C., with M. Tiruchelvam,Q.G., and V. K. Pala-
suntheram, for petitioner.
C. F. Jayaratne, Crown Counsel, for respondent.
Cur adv. vult.
June 6, 1961. Gunasekaba, J.—
This is an application for a mandate in the nature of a writ of mandamusdirecting the Controller of Immigration and Emigration to issue to thepetitioner a residence visa for 2 years in terms of section 14 of the Immi-grants and Emigrants Act, No. 20 of 1948, as amended by Act No. 16 of1955.
The petitioner, an Indian citizen, was deported on the 4th December
upon an Order made in terms of section 31 of the Act. The managerof his business in Ceylon wrote to the Prime Minister on the 12th March
representing that the deportation of the petitioner affected themanagement of the business adversely and asking that the petitioner begranted an entry visa and a residence visa.
116
GUNASEKARA, J.-=~Sethu Bamaaamy v. Moregoda
It is common ground that the Prime Minister having considered therequest made on behalf of the petitioner “ directed that he be issued anEntry Visa to enter Ceylon and thereafter on his arrival in Ceylona Residence Visa **. The Permanent Secretary to the Ministry of Defenceand External Affairs replied to the manager by a letter dated the 18thMarch 1960 that the Prime Minister (who was, of course, the Minister ofDefence and External Affairs) had authorized the issue of such visas tothe petitioner. He asked to be informed at which Ceylon Visa Officein India the petitioner wished to have his passport endorsed with an entryvisa so that the necessary instructions might be issued to the appropriateoffice. He was informed that the office would be the one at " Trichy ”.
On the 22nd September 1960 the petitioner applied to the Ceylon VisaOffice at Tiruchinapalli for a visit visa and such a visa was granted to himon the 27th September for entry into and stay in Ceylon until the 27thOctober 1960. He arrived in Ceylon about the 6th October and imme-diately applied to the Controller of Immigration and Emigration for aresidence visa for 2 years. By a letter dated the 27th October 1960 theController replied that his request could not be granted. Thereupon, onthe 31st October the petitioner made his present application, contendingthat the Controller was obliged in law to issue to him a residence visa inaccordance with the direction given by the Prime Minister.
The application was taken up for hearing before T. S. Fernando, J. onthe 11th November 1960, and on that day the hearing was adjourned toenable the petitioner to inquire from the Ministry whether the directiongiven by the Prime Minister in March 1960 had been countermanded. Thepetitioner’s proctor wrote to the Permanent Secretary on the next daymaking this inquiry. The latter replied on the 5th January 1961 statingthat the petitioner was “ a person against whom a Deportation Order hadbeen issued and executed ” and that the visa granted to him was “ void andof no effect in terms of section 17 of the Immigrants and Emigrants ActNo. 20 of 1948 as amended by Act No. 16 of 1955 ”. At the hearing beforeme counsel for both sides presented their arguments upon the footing thatthe direction in question had not been countermanded. The respondent’sposition, which is set out in an affidavit dated the 22nd March 1961, isthat the petitioner was refused a residence visa “ as it was consideredneither legal nor proper for the subject of a Deportation Order to bepermitted to enter or to remain in Ceylon ”.
In terms of regulation 5 of the Regulations made under the Act theController of Immigration and Emigration is a prescribed authority forthe purpose of granting visas. Section 5 (1) of the Act provides that inthe exercise, performance or discharge of the powers, duties or functionsconferred, imposed or assigned by or under the Act the Controller shall besubject to the general or special directions of the Minister. It is contendedon behalf of the petitioner that the respondent is therefore under a dutyto comply with the direction given by the Prime Minister to the Controllerin March 1960.
OTTlfASEKARA, J.—Sdhu Bamasamy v. Moregoda
117
Section 17 of the Act, which is referred to in the Permanent Secretary’sletter of the 5th January 1961, reads as follows :
Where a deportation Order or removal Order is made under thisAct in respect of any person, any endorsement or visa granted orissued to that person shall be'deemed to be void and of no effect forthe purposes of this Act.
I agree with the learned counsel for the petitioner that the endorsementsand visas contemplated in this section are only existing ones and not anythat may be granted after the making of the Order.
In support of the view that the grant of a visa to the petitioner wouldnot be lawful the learned crown counsel sought to rely on section 11 (2) (g),which is in these terms :
.Except in such circumstances as may be prescribed, no endorsementor visa shall be granted or issued to any person who … isthe subject of a deportation Order in force under this Act.
The circumstances in which a visa may be issued to such a person areprescribed in regulation 12, which provides that
No visa to enter Ceylon shall be granted or issued to any personreferred to in section 11 (2) of the Act, except …(b) where
the Minister directs that a visa be granted or issued to such person.
It seems clear, therefore, that a valid visa to enter Ceylon can be granted orissued to the subject of a deportation Order if the Minister has directedthat a visa be granted or issued to such person.
A deportation Order is an Order made by the Minister requiring thesubject of the Order “ to leave Ceylon and to remain thereafter out ofCeylon ** (section 31 (1) ). In terms of section 31 (3),
A person with respect to whom a deportation Order is madeshall leave Ceylon in accordance with the Order, and shall thereafterso long as the Order is in force remain out of Ceylon.
Mr. Nadesan contends that once the Minister has given a direction that avisa be granted or issued to such a person the deportation Order, which hasbeen made by the Minister, ceases to be in force, and that a valid residencevisa can be issued to him by the Controller. I agree with this contentionand with the further contention that it is the Controller’s duty to obey thedirection given to him by the Prime Minister to issue such a visa to thepetitioner.
This view of the matter, however, cannot conclude the question whetherthe application should be granted ; for, as has been pointed out byMr. Jayaratne, a mandamus will not be granted when it appears that itwould be futile in its result. Regulation 20 (1) provides, among other
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Wijeyadoru v. Sirisena
things that it shall be a condition of every visa that the prescribed authoritymay, in his absolute discretion, cancel such visa. The respondent isthus enabled to render ineffective any mandate requiring him to issue avisa, for he has the power to cancel it as soon as it has been issued. Theapplication is therefore refused.
The respondents will have their costs.
Application refused.