Capistrano, Arnulfo v Minister of State for Immigration & Multicultural Affairs [1997] FCA 260

CATCHWORDS IMMIGRATION - Application for visas - Whether Migration Regulations Amendment, statutory rules 211 of 1996 are valid STATUTORY INTERPRETATION - Whether amendments to Regulations were ultra vires Migration Act 1958 (Cth), ss 29, 30, 31, 37, 40, 45, 46, 47, 337,338, 340, 476, 504 Migration Regulations Schedule 1 Paragraphs 1301(3)(c), 1302(3)(baa), 1303(3)(c), 1304(3)(baa) and 1305(3)(bb). Acts Interpretation Act (Cth) ss 15AA ARNULFO CAPISTRANO v. MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS No. NG 952 of 1996 EMMETT J SYDNEY 18 April 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 952 of 1996 ) GENERAL DIVISION )

BETWEEN: ARNULFO CAPISTRANO Applicant AND: MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

CORAM: EMMETT J PLACE: SYDNEY DATED: 18 APRIL 1997

REASONS FOR JUDGMENT These proceedings were commenced by application under Part IVA of the Federal Court of Australia Act. The application is brought against the respondent ("the Minister") on behalf of a class said to comprise persons who had made applications for visas which the Minister had refused to consider on the ground that they were not valid applications. The application purports to invoke the jurisdiction of the court under section 486 of the Migration Act 1958 and section 39B of the Judiciary Act 1903. Notice of objection to the competency of the application was filed on behalf of the Minister. I dealt with that question separately and concluded that the objection to competency should fail. In the course of argument on the substance of the application, however, it became apparent that there may be further questions of jurisdiction which remain to be resolved. It may be, therefore, that my earlier determination should be regarded as provisional. It is clear that a question of law has arisen as between the members of the class and the Minister. By the Migration Regulations (Amendment), being statutory rules 211 of 1996 ("the Amendment"), paragraphs 1301(3)(c), 1302(3)(baa), 1303(3)(c), 1304(3)(baa) and 1305(3)(bb) in Schedule 1 to the Migration Regulations were amended. The question in issue between the members of the class and the Minister is whether those amendments were valid. I propose to deal with the question. It may be that it will then be necessary to consider the procedural framework within which the question can properly be determined. As I understand the position, if the amendments effected to the paragraphs to which I have referred above are valid, the present application must be dismissed. In order to deal with the question, it is necessary to examine the statutory framework within which the paragraphs operate. Section 29(1) of the Migration Act provides that the Minister may grant to a non-citizen permission, to be known as a "visa", either to travel to and enter Australia or to remain in Australia. Section 40(1) provides that the regulations may provide that visas of a specified class may only be granted in specified circumstances. Section 40(2) provides that the circumstances may be that, when the visa is granted to the person, the person: