De Silva, Liyanage Pilak Robert Leonard & Ors v Minister for Immigration & Multicultural Affairs [1998] FCA 1496

De Silva, Liyanage Pilak Robert Leonard & Ors v Minister for Immigration & Multicultural Affairs [1998] FCA 1496

The Regulation was valid. The 1 November 1993 cut-off date was not unreasonable or capricious because it formed part of a valid policy scheme closing the prior Subclass 435 class and creating a new Resolution of Status class for long-term temporary visa holders whose status remained unresolved; the date was selected after balancing relevant policy considerations. For the same reasons the Regulation was capable of being considered reasonably proportionate to the statutory object of regulating, in the national interest, the coming into and presence in Australia of non-citizens. The direct discrimination claim failed because the challenged criterion distinguished between persons by date of...

Jurisdiction
Australia
Judgment Date
24 November 1998
Procedural Posture
Appeal Concerning Validity of Migration Regulations / Appeal From a Judge of the Federal Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['validity of Delegated Legislation' 'unreasonableness' 'reasonable Proportionality' 'subclass 435 Temporary Visas' 'racial Discrimination' 'direct Discrimination' 'national Origin']
['immigration' 'administrative Law' 'anti Discrimination Law'] ['validity of Delegated Legislation' 'unreasonableness' 'reasonable Proportionality' 'subclass 435 Temporary Visas' 'racial Discrimination' 'direct Discrimination' 'national Origin']

Case Brief

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Procedural Posture

Appeal Concerning Validity of Migration Regulations / Appeal From a Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether clause 7.1 of the Migration Regulations (Amendment) Statutory Rule No 184 of 1997 was invalid for unreasonableness because the 1 November 1993 cut-off date was arbitrary and capricious.' 'Whether the Regulation lacked reasonable proportionality to the purpose of the regulation-making power under the Migration Act 1958 (Cth).' 'Whether the Regulation involved direct discrimination contrary to s 9(1) of the Racial Discrimination Act 1973 (Cth) on the basis of national origin.' 'Whether severance of the challenged Regulation from the remainder of clause 7 needed to be considered.']

Ratio Decidendi

The Regulation was valid. The 1 November 1993 cut-off date was not unreasonable or capricious because it formed part of a valid policy scheme closing the prior Subclass 435 class and creating a new Resolution of Status class for long-term temporary visa holders whose status remained unresolved; the date was selected after balancing relevant policy considerations. For the same reasons the Regulation was capable of being considered reasonably proportionate to the statutory object of regulating, in the national interest, the coming into and presence in Australia of non-citizens. The direct discrimination claim failed because the challenged criterion distinguished between persons by date of...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Kanchane Dinesh Rajapakse of West Footscray be joined as an appellant in the appeal.' 'The appeal be dismissed.' "The appellants whose names are set out in the schedule to this order pay the respondents' costs of the appeal but if any appellant pays to the solicitor for the respondents a 1/158th share of the costs...