Rahman v Minister for Immigration and Multicultural Affairs

[2001] FCA 1236

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…