Rohner, Felix Walter & Anor v Scanlan, Linda & Anor [1997] FCA 832

Rohner, Felix Walter & Anor v Scanlan, Linda & Anor [1997] FCA 832

Despite s 485(1) of the Migration Act, the Federal Court retains jurisdiction under s 39B(1A) of the Judiciary Act 1903 to determine the validity of regulations for inconsistency with Commonwealth statutes where such matters arise, and should exercise that jurisdiction where no adequate alternative exists within the statutory review scheme.

Jurisdiction
Australia
Judgment Date
18 August 1997
Procedural Posture
Application for Review of Administrative Decision / Interlocutory Ruling on Objection to Competency
Outcome
Objection to competency upheld, but Court asserts jurisdiction to determine validity of regulation and grants leave to amend application.
Legal Topics
['judicial Review of Administrative Decisions' 'validity of Delegated Legislation' 'jurisdiction of Federal Court' 'sex Discrimination and Migration Regulations' 'declaratory Relief']
['migration Law' 'administrative Law' 'human Rights Law' 'discrimination Law'] ['judicial Review of Administrative Decisions' 'validity of Delegated Legislation' 'jurisdiction of Federal Court' 'sex Discrimination and Migration Regulations' 'declaratory Relief']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Review of Administrative Decision / Interlocutory Ruling on Objection to Competency

Legal Issues

  1. 1 ["Whether the Migration Regulation defining 'spouse' as limited to opposite sex is invalid under the Sex Discrimination Act 1984 (Cth) and Human Rights and Equal Opportunity Commission Act 1986 (Cth)" 'Whether the Federal Court has jurisdiction to determine the validity of the regulation via s 39B(1A) Judiciary Act 1903 (Cth) despite s 485 Migration Act 1958 (Cth) excluding judicial review' 'Whether declaratory relief is available in relation to the operation of Commonwealth statutes where relevant to a migration decision']

Ratio Decidendi

Despite s 485(1) of the Migration Act, the Federal Court retains jurisdiction under s 39B(1A) of the Judiciary Act 1903 to determine the validity of regulations for inconsistency with Commonwealth statutes where such matters arise, and should exercise that jurisdiction where no adequate alternative exists within the statutory review scheme.

Court Disposition

Objection to competency upheld, but Court asserts jurisdiction to determine validity of regulation and grants leave to amend application.

Orders

  • ["Respondents' objection to competency be upheld." 'Court declares jurisdiction to determine whether to grant the declaration sought on specified grounds.' 'Applicants have leave to amend the application to pursue their claim for the declaration.']