Quarm v Minister for Immigration & Citizenship [2008] FCA 1156

Quarm v Minister for Immigration & Citizenship [2008] FCA 1156

The 2006 transitional provision did not render cl 880.230(2) arbitrary or capricious because subclause (2) operated only where the assessment in subclause (1) applied, so it did not affect applications lodged before 1 July 2005. In any event, any operation on cases where it had no work to do would not affect outcomes. Clause 880.230(2) was supported by s 31(3) of the Migration Act 1958 (Cth), and s 93 did not imply a limitation preventing alteration of criteria between application and decision. There was no acquisition of property because the appellant paid the visa application fee voluntarily and obtained only a right to have her application considered and determined according to law,...

Jurisdiction
Australia
Judgment Date
22 August 2008
Procedural Posture
Migration Appeal Involving Constitutional Law and Delegated Legislation / Appeal From the Federal Magistrates Court of Australia
Outcome
Appeal dismissed.
Legal Topics
['acquisition of Property on Just Terms' 'visa Application Criteria' 'validity of Regulations' 'ultra Vires Delegated Legislation' 'transitional Provisions']
['constitutional Law' 'migration Law' 'administrative Law' 'delegated Legislation'] ['acquisition of Property on Just Terms' 'visa Application Criteria' 'validity of Regulations' 'ultra Vires Delegated Legislation' 'transitional Provisions']

Case Brief

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Procedural Posture

Migration Appeal Involving Constitutional Law and Delegated Legislation / Appeal From the Federal Magistrates Court of Australia

Legal Issues

  1. 1 ['Whether cl 880.230(2) of the Migration Regulations 1994 (Cth) and reg 4(3) of the Migration Amendment Regulations 2006 (No 4) (Cth) were invalid as arbitrary and capricious.' 'Whether the 2006 transitional provision, read with cl 880.230(2), effected an acquisition of property other than on just terms contrary to s 51(xxxi) of the Constitution.' 'Whether cl 880.230(2), as given effect by the 2006 transitional provision, was supported by s 31(3), s 504 or any other provision of the Migration Act 1958 (Cth).']

Ratio Decidendi

The 2006 transitional provision did not render cl 880.230(2) arbitrary or capricious because subclause (2) operated only where the assessment in subclause (1) applied, so it did not affect applications lodged before 1 July 2005. In any event, any operation on cases where it had no work to do would not affect outcomes. Clause 880.230(2) was supported by s 31(3) of the Migration Act 1958 (Cth), and s 93 did not imply a limitation preventing alteration of criteria between application and decision. There was no acquisition of property because the appellant paid the visa application fee voluntarily and obtained only a right to have her application considered and determined according to law,...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal."]