Wasantha v Minister for Immigration & Multicultural

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant, Gamini Wasantha, as representative of all members of the Sri Lankan Humanitarian Entrants (Subclass 435) Association has sought declarations that reg 7.1 of the Migrations Regulations (Amendment) No 184 of 30 June 1997 and reg 10 and reg 12 of the Migration Regulations (Amendment) No 279 of 1 October 1997 in so far as these regulations relate to Sri Lanka are invalid, together with associated relief. 2 This proceeding is one of a number of this character that have been instituted in this Court. In De Silva v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 355 the Full Court of this Court upheld the validity of these regulations when challenged on grounds that largely overlap those raised in the present application. 3 The applicant now concedes that, as a result both of De Silva's case and of Macabenta v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 465, four of the six grounds of challenge relied upon are now unarguable. The remaining two that he wishes to pursue are that: "(iv) The making of the Regulations in requiring the Applicant to have entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa which had effect as if it were an entry permit amounts to a breach of the rules of natural justice as the Applicant had a legitimate expectation that the Respondent would have considered the on going civil war and situation of political unrest in Sri Lanka before extending the subclass 435 visa for only those who arrived in Australia before 1 November 1993. … (vi) The making of the Regulations in requiring the Applicant to have entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa as if it were an entry permit is contrary to the International Covenant on Civil and Political Rights to which Australia is a signatory." 4 The respondent in turn has moved for an order under O 20 r 2 of the Federal Court Rules that the application be struck out as disclosing no reasonable cause of action. 5 Before considering the motion I should make the following observations on the regulations impugned in this proceedings. First, the regulations themselves were made by the "Governor-General" under s 504(1) of the Migration Act 1958 (Cth) ("the Act"): see also s 31(3) of the Act. They equally were subject to the requirements of s 48 of the Acts Interpretation Act 1901 (Cth). Secondly, given the nature of the remaining challenges made by the applicant, it is unnecessary to refer to their detail other than to say that they relate to temporary residence visas for visitors (inter alia) from Sri Lanka and were, to use the description of Merkel J in De Silva at first instance, to the following effect: "Statutory Rule No 279 created the Subclass 850 resolution of status (temporary) visa for, inter alia, Sri Lankans in Australia on or prior to 1 November 1993, and the permanent Subclass 851 resolution of status visa for, inter alia, the holders of the Subclass 435 or 850 visas, who satisfy the requirements for permanent residence, which included 10 years' residence in Australia; Statutory Rule No 184, inter alia, changed eligibility for Subclass 435 visas for Sri Lankans in Australia from [entry to Australia] on or prior to 31 July 1996 [to entry on or prior] to 1 November 1993 and, to ensure that applicants for a Subclass 850 visa would be lawfully in Australia at the date of their application, extended the period of the visa from 31 July 1997 to 31 July 1998 for those eligible to apply for it."

Procedural Fairness 6 The claim here would seem to be that the applicants were entitled to be accorded procedural fairness before the making of the regulations by the Governor-General although it is not altogether clear either from the terms of the ground itself or from the argument before me that the claim made is not in fact invalidity on the grounds of the alleged substantive unfairness of the respective regulations. The only authorities relied upon in support of the challenge were well-known decisions of the High Court that have discussed in general terms the obligation to provide natural justice (or procedural fairness), for example, Kioa v West (1985) 159 CLR 550 and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Tellingly the applicant's submissions referred to the decision of O'Loughlin J in Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 27 ALD 633. That decision is clear authority for the contrary proposition to that advanced by the applicant. 7 This challenge can be disposed of shortly. Notwithstanding (a) the applicant's assertion that the making of the regulations was simply an act of the Executive; and (b) the progressive collapse (save under the Administrative Decisions (Judicial Review) Act 1977 (Cth): see eg Queensland Medical Laboratory v Blewett (1988) 84 ALR 615) of the "legislative - administrative" dichotomy for the purposes of procedural fairness: see Pearce and Argument, Delegated Legislation in Australia, 107-109 (2nd Ed); Aronson and Dyer, Judicial Review of Administrative Action, 431 ff; I am satisfied that regulations of the present type made under the Act's regulation-making power are so legislative in their subject matter and sufficiently general in their character: see especially s 31(3) of the Act; and are so policy driven in their formulation and purpose: see De Silva's case at 361-362; that it would be unreasonable to conclude that Parliament had not, albeit impliedly, intended to exclude the common law right to procedural fairness from the exercise of the regulation-making power - even if it would otherwise have applied to it. I express no view on that last matter.
The "Covenant" Challenge 8 The basis of this challenge is seemingly that because the regulations in question are allegedly contrary to the requirements of the International Covenant on Civil and Political Rights they are invalid, apparently, for common law reasons. Teoh's case, somewhat surprisingly, was relied upon for this submission. More astonishingly, the written submissions filed by the applicant's legal adviser states: "Furthermore, per Article 15 of the Australian Bill of Rights 1985 [sic] which provides that every person lawfully in Australia has the right to freedom of movement and choice of residence." 9 The basic misunderstandings of the nature and content of Australian law that infect these submissions are so fundamental that little purpose would be served in responding to them other than to say (a) that Australia does not have a Bill of Rights; and (b) that whatever the residual power of the Courts (if any) to invalidate legislation or legislative instruments on bare common law grounds, the common law does not extend to invalidating regulations not disallowed by Parliament: see Acts Interpretation Act 1901 (Cth), s 48; because they are inconsistent with a treaty to which Australia happens to be a signatory.

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