FEDERAL COURT OF AUSTRALIA Rahman v Minister for Immigration & Multicultural Affairs [2001] FCA 1236 MIGRATION – review of decision of Migration Review Tribunal – application for visitor's visa – whether Clause 4011 of the Migration Regulations is ultra vires the Migration Act on the ground of proportionality – whether Minister's Gazette Notice is ultra vires the Migration Act or Regulations Davis v Commonwealth (1988) 166 CLR 79 referred to Cunliffe v Commonwealth (1994) 182 CLR 272 referred to Regina (Daly) v Secretary of State for the Home Department (2001) 1 WLR 1622 referred to Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 referred to One.Tel Ltd v Australian Communications Authority [2001] FCA 54 applied Migration Act s 4, 31, 504 Migration Regulations 676.221(1)(b), 676.221(2)(e), 4011, 1.17. 2.02, 2.03 FAHMID RAHMAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 594 OF 2001 HELY J 6 SEPTEMBER 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 594 OF 2001 BETWEEN: FAHMID RAHMAN APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 6 SEPTEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 594 OF 2001 BETWEEN: FAHMID RAHMAN APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE: 6 SEPTEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 26 November 1999 the applicant married Ms Afroz ("the wife") in Bangladesh. It is common ground that around that time the wife applied for a visa or entry permit for the purpose of securing permanent residence in Australia, although the materials before the Court do not establish precisely when that application was made, nor do I have any information as to the detail of that application. 2 On 6 December 2000 the wife applied for a visitor's visa Class 676 (Tourist Short Stay). The criteria to be satisfied at the time of decision included (Regs 676.221(1)(b), 676.221(2)(e)) that the applicant meet public interest criterion 4011, as set forth in Schedule 4 of the Migration Regulations. Criteria 4011(1) provides: "(1) If the applicant is affected by the risk factor specified in sub-clause (2), the applicant satisfies the Minister that, having regard to the applicant's circumstances in the applicant's country of usual residence, there is very little likelihood that the applicant will remain after the expiry of any period during which the applicant might be authorised to remain after entry." 3 Clause 4011(2) provides: "(2) An applicant is affected by the risk factor referred to in sub-clause (1) if: (a) during the period of 5 years immediately preceding the application, the applicant has applied for a visa or entry permit for the purpose of permanent residence in Australia; or (b) the applicant has all the characteristics of a class of persons specified by the Minister by Gazette Notice for the purposes of this paragraph." Clause 4011(2A) provides that in specifying a class of persons for the purposes of par (2)(b), the Minister must have regard to departmental statistics about the characteristics of persons who have remained in Australia after the expiry of the period of their visa. By Clause 4011(3) relevant characteristics include, amongst other things, nationality, marital status, age and sex. 4 By Regulation 1.17 of the Migration Regulations 1994 the Minister may, by notice published in the Gazette, specify matters required by individual provisions of the Regulations to be specified for the purposes of those provisions. By notice published in the Gazette on 20 December 2000 the Minister specified, for the purposes of par 4011(2)(b) of Schedule 4 to the Regulations, the classes of persons described in the Schedule to the Notice. Item 5 in that Schedule is a female national of Bangladesh who is aged 20 years or older. 5 The wife was affected by the risk factor referred to in sub-clause (1) as she fell within par (a) as well as par (b) of Clause 4011(2). 6 On 19 April 2001 the Migration Review Tribunal ("MRT") affirmed the decision of the Minister's delegate to the effect that the wife was not entitled to the grant of a Short Stay (Visitor) (Class TR) visa. MRT said: "45. The Tribunal sympathises with the wish of the parties to spend time together and has considered the evidence and inducements for the visa applicant to return until the appropriate time for her to come permanently to Australia. However, the Tribunal has concluded that these inducements are insufficient for it to be satisfied that there is very little likelihood that the visa applicant will remain after any period during which she might be authorised to remain after entry. Apart from her studies and trying to establish a good migration record she appears to have no other inducements to return to Bangladesh. On the contrary the visa applicant has far more inducements to stay in Australia." 7 Counsel for the applicant contends that Clause 4011 is ultra vires the Migration Act "on the grounds of proportionality". The Gazettal Notice is said to be invalid on the same ground. In the applicant's submission, subordinate legislation must exhibit a reasonable proportion between the object and the means, and Clause 4011 makes it practically impossible for a woman living overseas, married to an Australian citizen living in Australia, to obtain a temporary visa. Adopting the language of the High Court in Davis v Commonwealth (1988) 166 CLR 79 at 100, Mr Church, counsel for the applicant, submitted that the barrier Clause 4011 erects in the path of a woman married to an Australian citizen is grossly disproportionate in terms of the intended objective of the clause. The clause is not "appropriate and adapted to the end in view": Cunliffe v Commonwealth (1994) 182 CLR 272 at 297. 8 Reliance was also placed on the recent decision of the House of Lords in Regina (Daly) v Secretary of State for the Home Department (2001) 1 WLR 1622. At 1634 Lord Steyn said: "27 The contours of the principle of proportionality are familiar. In De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing (1999) 1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the Court should ask itself: 'whether: (i) the legislative object is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'" 9 In Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 577 Gummow J held that whatever may be the sweep of the proportionality principle in federal constitutional law, when the question of validity concerns the delegated legislation made pursuant to a law of the Parliament whose validity itself is not impugned, the proportionality principle is differently focused. In such a case the fundamental question is whether the delegated legislation is within the scope of what the Parliament intended when enacting the statute which empowers the subordinate authority to make laws. A regulation making power does not authorise the making of regulations which vary or depart from the positive provisions of the Act, or which go outside the field of operation which the Act marks out; such a power does not support attempts to widen the purposes of the Act, to add new and different means of carrying them into effect, or to depart from or vary the plan which the legislature has adopted to obtain its ends. These are issues which assist in deciding the general question of whether the Regulations in question are a reasonable means of attaining the ends of the legislative delegation of power. 10 The authorities in this area were recently reviewed by a Full Court in One.Tel Ltd v Australian Communications Authority [2001] FCA 54. At [72] Hill J said: "The cases distinguish between those where the regulation making power is purposive and those where it is not. In the former case the substantive operation of the regulations must be capable of being reasonably considered to be appropriate and adapted to achieve the purpose prescribed by the legislation pursuant to which the regulation is made. That is to say there must be a reasonable proportionality between the object or purpose and the means adopted to achieve or procure it: Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 584. In the latter case, there must be a real and substantial (perhaps direct) connection between the Regulations and the subject matter of the grant of power: Dover Fisheries at 584-585." 11 Section 4 of the Migration Act 1958 (Cth) ("the Act") provides that the object of the Act is to regulate in the national interest, the coming into, and presence in, Australia of non-citizens. To advance its object, the Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that the Act be the only source of the right of non-citizens to so enter or remain. Section 31(1) provides that there are to be prescribed classes of visas. Section 31(3) provides that the Regulations may prescribe criteria for a visa or visas of a specified class. Section 504 is the regulation making power. Relevantly it is in the familiar form in which the Governor-General is authorised to make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. 12 Regulations 2.01 and 2.03 provide for classes of visas, and for criteria applicable to classes of visas. The criteria are set out in the relevant part of Schedule 2, and if a criterion in Schedule 2 refers to a criterion in Schedule 4 by number, a criterion so referred to must be satisfied by an applicant as if it were set out at length in the first-mentioned criterion. Schedule 2 includes sub-class 676 – Tourist (Short Stay) and I have already referred to the provisions of Clause 676.221 being criteria to be satisfied at the time of decision which, in the present case incorporates the public interest criteria 4011 contained in the fourth Schedule. 13 The regulation making power in the context of the present case is purposive only in the sense that what the Regulations must provide for is a class of visas and criteria for visas which are consistent with the object of the Act as set out in Section 4. It is self-evident that Clause 4011 is such a requirement. It is a criterion for the grant of a particular type of visa in particular circumstances. There is a real substantial and direct connection between the provisions of Clause 4011 and the subject matter of the grant of power. The subject matter of the grant of power is s 31 of the Act and the provisions of the clause exactly satisfy the description of the matter which the legislature has left to be dealt with by regulation, namely the specification of criteria for grant of a visa. 14 Insofar as there is any room for notions of proportionality, neither the provisions of Clause 4011(2)(a) nor the Minister's Gazettal notice exhibits a want of proportionality. There is a logical connection between the factors which result in a person falling within Clause 4011(2)(a) or (b), and the likelihood of such a person overstaying the visa. It is true that Clause 4011 may have a particular impact upon a woman married to an Australian national who is living overseas, and it may be difficult for such a person to satisfy the requirements of the clause, but the impact is not disproportionate in the relevant sense to the end in view. There is a logical linkage between the situation of such a woman, and the likelihood of overstaying a visa issued for a period not exceeding three months. 15 The relevant Regulations are not ultra vires the Act; nor is the Ministerial determination ultra vires the Act and/or the Regulations. 16 The application should be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 6 September 2001 Counsel for the Applicant: S C Churches Counsel for the Respondent: R Beech-Jones Solicitor for the Respondent: Clayton Utz Date of Hearing: 22 August 2001 Date of Judgment: 6 September 2001