Ismail, Isman v Minister for Immigration and Ethnic Affairs & Ors [1996] FCA 227

Ismail, Isman v Minister for Immigration and Ethnic Affairs & Ors [1996] FCA 227

Regulation 8, as a transitional provision, is not so radical or inconsistent with the primary legislation as to exceed the regulation-making power granted by the Migration Reform Act 1992; thus, it is valid.

Parties
Applicant: Isman Ismail; First Respondent: Minister for Immigration and Ethnic Affairs; Second Respondent: Margaret J.M. Korn, Senior Migration Officer; Third Respondent: The Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
25 March 1996
Procedural Posture
Judicial Review Application / Determination of Separate Question on Validity of Regulation
Outcome
Challenge to validity of regulation dismissed; regulation upheld
Legal Topics
Judicial Review, Validity of Delegated Legislation, Transitional Provisions, Visas, Repugnancy, Henry VIII Clauses
Citizenship Immigration Administrative Law Judicial Review Validity of Delegated Legislation Transitional Provisions Visas Repugnancy +1 more

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Parties

Isman Ismail

Applicant

Minister for Immigration and Ethnic Affairs

First Respondent

Margaret J.M. Korn, Senior Migration Officer

Second Respondent

The Commonwealth of Australia

Third Respondent

Procedural Posture

Judicial Review Application / Determination of Separate Question on Validity of Regulation

Legal Issues

  1. 1 Whether Regulation 8 of the Migration Reform (Transitional Provisions) Regulations 1994 is valid
  2. 2 Whether the regulation is repugnant or inconsistent with the statutory scheme of the Migration Act 1958
  3. 3 Whether the regulation constitutes an impermissible Henry VIII clause

Ratio Decidendi

Regulation 8, as a transitional provision, is not so radical or inconsistent with the primary legislation as to exceed the regulation-making power granted by the Migration Reform Act 1992; thus, it is valid.

Court Disposition

Challenge to validity of regulation dismissed; regulation upheld

Orders

  • The separate question be answered as follows: 'Is Regulation 8 of the Migration Reform (Transitional Provisions) Regulations valid?' 'Yes.'