Liyanage Pilak Robert Leonard De Silva & Ors v Mr Philip Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs) & Anor [1998] FCA 95 (19 February 1998)

FEDERAL COURT OF AUSTRALIA

MIGRATION LAW - subclass of temporary entry visas created on humanitarian grounds for Sri Lankan nationals - regulations made which enabled some holders of the visa subclass to qualify for permanent visas but made no provision for others - distinction based on date of entry to Australia of visa holder - whether regulations constituted a valid exercise of regulation making power under Migration Act 1958 - whether regulations constituted unlawful discrimination under the Racial Discrimination Act 1973 - invalidity of regulations on the ground of unreasonableness - reasonable proportionality test of validity - whether unreasonableness test is a criterion for determining reasonable proportionality.

DISCRIMINATION LAW - whether regulations amending criteria for the humanitarian visa subclass inconsistent with, or constituting unlawful discrimination under Racial Discrimination Act - whether direct discrimination - distinction between `nationality' and `national origin' - whether making of the regulation nullifies or impairs any human right or freedom - whether indirect discrimination.

Migration Act 1958 (Cth) ss 4, 30, 31, 504(1)

Racial Discrimination Act 1973 (Cth) ss 9(1) and 9(1A)

Acts Interpretation Act 1901 (Cth) s 16A

Migration Regulations Schedule 2, Part 435

Migration Regulations (Amendment) No 184 of 1997

Migration Regulations (Amendment) No 279 of 1997

South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161, considered and applied

Qiu v Minister for Immigration (1994) 55 FCR 439 considered

Bienke v Minister for Primary Industries and Energy (1995) 63 FCR 567 considered

Eremin v Minister for Immigration (Wilcox J, 1 August 1990, unreported; and on appeal [1990] FCA 326; (1990) 21 ALD 69) considered

Coleman v Gray (1994) 55 FCR 412 applied

Ealing London Borough Council v Race Relations Board [1971] UKHL 3; [1972] AC 342 followed

Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 followed

Australian Medical Council v Wilson (1996) 68 FCR 46 considered and followed

Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR cited

LIYANAGE PILAK ROBERT LEONARD DE SILVA AND OTHERS -v- MR PHILIP RUDDOCK (in his capacity as MINISTER FOR IMMIGRATION and MULTICULTURAL AFFAIRS) AND THE COMMONWEALTH OF AUSTRALIA

vg 607 OF 1997

JUDGE: MERKEL J

PLACE: MELBOURNE

DATE: 19 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 607 of 1997

BETWEEN:	LIYANAGE PILAK ROBERT LEONARD DE SILVA and others Applicants
AND:	MR PHILIP RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs) First Respondent THE COMMONWEALTH OF AUSTRALIA Second Respondent
JUDGE:	MERKEL J
DATE OF ORDER:	19 february 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT the application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 607 of 1997

BETWEEN:	LIYANAGE PILAK ROBERT LEONARD DE SILVA AND OTHERS Applicants
AND:	MR PHILIP RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs) First Respondent THE COMMONWEALTH OF AUSTRALIA Second Respondent

JUDGE:	MERKEL J
DATE:	19 february 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

One hundred and sixty-four applicants have applied to the Court for declarations that certain regulations made under the Migration Act 1958 (Cth) ("the Act") are invalid. The applicants, who are Sri Lankan citizens of Tamil, Sinhalese and Burgher origin, claim that the invalid regulations terminated their entitlement to remain lawfully in Australia. The invalidity alleged was that:

* the regulations did not constitute a valid exercise of the regulation making power under the Act; and

* the regulations were inconsistent with, and constitute unlawful discrimination under ss 9(1) and 9(1A) of the Racial Discrimination Act 1973 (Cth) ("the RD Act").

THE MIGRATION REGULATIONS

The Act provides for the Governor-General to make regulations prescribing all matters required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act: see s 504(1). The Governor-General is to exercise the power to make regulations with the advice of the Executive Council: see s 16A of the Acts Interpretation Act 1901 (Cth).

Sections 30 and 31 of the Act provide for the regulations to prescribe criteria for a visa or a specified class of visa for persons to remain in Australia temporarily or permanently. Sections 32 to 38 provide for particular classes of visas. The nature and categories of visas will, to some extent, be governed or influenced by the object of the Act which is set out in s 4 as follows:

"(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act."

The width of the object affords considerable scope and discretion as to the classes of visas that may be established for non-citizens.

The present case involves three classes of visa: subclass 435 (Sri Lankan); subclass 850 - Resolution of Status (Temporary); and subclass 851 - Resolution of Status. The genesis of these classes, as presently formulated, appears to have been a decision of the Federal Government announced on 1 November 1993 to grant permanent residence visas (subclass 816) on humanitarian grounds to certain nationals of China, Sri Lanka and the former Yugoslavia. Applications for the subclass 816 visas were to be assessed on the basis of the applicant's circumstances, including residence in Australia, on 1 November 1993. At the same time certain previous concessional arrangements for citizens of these countries were terminated.

Independently of the above during 1990/91 certain visitors and temporary entrants in Australia from Sri Lanka were granted subclass 435 visas extending their stay in Australia on a temporary basis because of the deleterious situation in their homelands. Similar visas were available to temporary entrants from the former Yugoslavia. The subclass 435 visas were extended from time to time. In an announcement made on 1 July 1996, further extending the visas to 31 July 1997 for certain Sri Lankans and former Yugoslavs present in Australia on or prior to 31 July 1996, the Minister stated that if the current positive political developments in both regions continued "there will be no need for these arrangements to be extended beyond 31 July 1997." Entitlement for Sri Lankans to the subclass 435 visa required, inter alia, citizenship of and usual residence in Sri Lanka immediately prior to entry into Australia.

On 13 June 1997 the decisions which gave rise to the present litigation were announced. In substance the Minister stated that the new visa classes referred to above were to be created enabling certain persons who "for humanitarian reasons" had been allowed to remain in Australia as temporary residents to regularise their position by eventually obtaining visas for permanent residence. The proposal was stated to include:

"... people who are citizens of the following countries and who arrived lawfully in Australia from:

* Kuwait - on or before 31 October 1991

* Iraq - on or before 31 October 1991

* Lebanon - on or before 30 November 1991

* China - on or before 1 November 1993

* Sri Lanka - on or before 1 November 1993

* former Yugoslavia - on or before 1 November 1993."

The dates chosen were said to be the "dates on which previous concessions for people from some of those countries were terminated." The reference in respect of Sri Lanka, China and former Yugoslavian nationals was to the 1 November 1993 decision which provided for 1 November 1993 to be the cut-off date for permanent residence eligibility for those nationals.

The 13 June 1997 announcement, in substance, meant that there was to be no further extension of the former subclass 435 visa that had been temporarily extended several times for Sri Lankans who arrived in Australia during the 1990's. The subclass 435 visa was to be amended as part of the implementation of the new scheme for permanent residence visas for, inter alia, certain Sri Lankan nationals in Australia on or prior to 1 November 1993. The effect of the change upon Sri Lankans was explained in a fact sheet, explaining the announcement, as follows:

"I am Sri Lankan and I hold a Class 435 temporary visa which expires on 31 July 1997. What will happen to me?

If you hold a Class 435 temporary visa and arrived in Australia on or before 1 November 1993, you will be able to apply for another Class 435 visa to carry you through until 31 July 1998.

If you apply for the new temporary visa, you will receive a Bridging Visa which will come into effect if your Class 435 visa expires before your temporary residence application is finalised and/or your Class 435 visa expires.

If you are a holder of a Class 435 visa and not eligible for the new visas you must depart Australia no later than 31 July 1997. There will be no further extension to your current visa beyond 31 July 1997."

The announcement was carried into effect by the Migration Regulations (Amendment) Statutory Rule No 184 dated 30 June 1997, in respect of a new temporary subclass 435 visa, and Migration Regulations (Amendment) Statutory Rule No 279 dated 1 October 1997 in respect of subclass 850 and 851 visas. In substance:

* 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 on or prior to 31 July 1996 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.

In the Explanatory Statements issued in respect of the Statutory Rules -

(a) the purposes of Statutory Rule 279 were stated as follows:

"The purposes of the proposed Regulations are to amend the Migration Regulations to reflect recent Government decisions to make permanent residence available to certain persons who have been in Australia under humanitarian arrangements and who have remained in Australia for some time with their status unresolved.

Those covered by the decision are citizens of Kuwait, Iraq, Lebanon, the People's Republic of China, Sri Lanka and the former Republic of Yugoslavia who arrived in Australia prior to particular dates, which relate to the cessation of previous visa and entry permit arrangements for certain of those citizens.

They will be permitted a further period of temporary residence with the availability of permanent stay after they have been in Australia for a total of ten years."

(b) the purposes of Statutory Rule 184 were stated, inter alia, as follows:

"The purposes of the Regulations are to amend the Migration Regulations to:

........; and

extend the time in which certain persons may apply for, and be granted, Subclass 435 (Sri Lankan) and 443 (Citizens of Former Yugoslavia) visas to 31 July 1998 for those who were lawfully in Australia on or before 1 November 1993. These amendments derive from the Government's decision to resolve the status of certain groups of people who, for humanitarian reasons, have been allowed to remain in Australia as long-term temporary residents through the introduction of a new visa arrangements [sic]. These regulation amendments will ensure that the above-mentioned persons will be lawful prior to the introduction of the new visa classes (regulations 7 and 8)."

As the subclass 850 and 851 visas were to commence on 1 October 1997, it was necessary to provide for the previous subclass 435 visas, which expired on 31 July 1997, to be extended to 31 July 1998. That extension enabled those eligible for the subclass 850 and 851 visas to be lawful non citizens resident in Australia at the date of their application.

There was considerable debate before me about the reasonableness of the decision to select the 1 November 1993 cut-off date. Accordingly, it is desirable that I set out the respondents' explanation of the choice of that date. The evidence, which was not challenged, was given by Mr Abul Rizvi, the Assistant Secretary of the Migration Branch.

"Following, as requested, is a statement regarding the Resolution of Status decisions announced by the Hon Philip Ruddock MP on 13 June 1997.

It has been the practice of successive governments over many years to provide, for humanitarian reasons, extension of stay concessions for people temporarily in Australia who have been suddenly affected by serious disruption in their home countries and who would have faced acute difficulties if required to return home at that time.

For example, persons from the regions of the Italian earthquakes in the 1970s, persons from the Lebanon and the Gulf in the 1980s, and persons from the former Yugoslavia and Sri Lanka in the 1990s. In very recent times short extensions of stay have been provided for Albanians and Cambodians.

In 1990 the then government introduced the subclass 435 visa to allow certain citizens of Sri Lanka to remain in Australia, initially for a period for three months, due to the conflict in Sri Lanka.

The period of availability of this visa subclass was extended on several occasions. The availability of the subclass was extended from 1 August 1996 to 31 July 1997 for those persons in Australia, but excluding new arrivals, on the understanding that further extensions beyond July 1997 were unlikely. This was made clear by the Minister in a press release at the time.

On 13 June 1997 the Government confirmed there would be no further extension to subclass 435 visas except for those Sri Lankans who, having arrived lawfully in Australia on or before 1 November 1993, were eligible to apply for the new Resolution of Status visas.

This extension was necessary to fill the gap between the expiry of their 435 visas and the date on which they could apply for the new visas to avoid them becoming unlawful non-citizens.

The Resolution of Status visa classes, which were announced on 13 June 1997 and introduced on 1 October 1997, made permanent residence available to certain nationals who, in addition to meeting other criteria, arrived in Australia prior to the "cut-off" date indicated:

* Iraq or Kuwait and arrived on or before 31/10/91;

* Lebanon and arrived on or before 30/11/91;

* Sri Lanka and arrived on or before 1/11/93;

* a country in the former Yugoslavia region and arrived on or before 1/11/93; or

* People's Republic of China and arrived on or before 1/11/93.

The Resolution of Status visa classes are a response to the circumstances of a number of groups who had been allowed to remain temporarily in Australia for many years and whose status in Australia remain unresolved. It was not intended that persons who were aware of the situation in their home countries, had the means to leave, and obtained temporary visas for Australia several years after the introduction of the 1990 extension of stay concession would benefit from the Resolution of Status visa classes. The Resolution of Status visa classes are not a response to the present day situations in the above countries.

The cut off date of 1 November 1993 was determined taking into account a range of factors including Australia's economic and budgetary capacity to assist. It provides a necessary cut off between those who had been here for a lengthy period without their status resolved and those who had arrived more recently in the full knowledge of circumstances in their home countries. The people who had arrived more recently were granted temporary extensions on the clear understanding that they would have to return home.

The cut off date was also consistent with previous arrangements, known as the 1 November 1993 decisions, which made permanent residence available to certain groups, primarily from the Peoples' Republic of China, but including Sri Lankans who had applied for refugee status or had been granted humanitarian temporary entry permits, and met age and qualification criteria. Those decisions had generated some hopes and expectations that other Sri Lankans in Australia at that time from broadly similar situations would also be allowed to stay.

The 1991 cut off dates for citizens of Iraq, Kuwait and Lebanon reflect the dates when earlier temporary concessions for those nationals ceased but nonetheless some persons remained in Australia with their status unresolved.

It is also appropriate to point out that any person in Australia, including Sri Lankans, who arrived after 1 November 1993, who believe they have a well founded fear of persecution on return as defined in the United Nations Convention on the Status of Refugees, may seek a Protection Visa."

THE APPLICANTS' CASE ON INVALIDITY UNDER THE ACT

The applicants contend that the amendments to the Regulations, particularly in respect of subclass 435 visas, are invalid in so far as they arbitrarily, capriciously and unreasonably select 1 November 1993 as the effective "humanitarian" cut off date for eligibility for the three classes of visas to Sri Lankan citizens to which I have referred. It was then contended that notwithstanding the invalidity, the other amendment in relation to subclass 435 visas which extended the operation of the visa from 31 July 1997 to 31 July 1998 was valid, with the consequence that, either there was no cut-off date or the previous cut-off date of 31 July 1996 for eligibility remained. Accordingly on either basis, so it was said, the applicants (who had arrived in Australia after 1 November 1993 and before 31 July 1996) were entitled to be granted extensions or renewals of their subclass 435 visas and the Minister had wrongfully refused to grant the visas sought on the basis of regulations which were invalid.

For the applicants to succeed in their claim they must establish that:

* the substitution in Statutory Rule 184 of "1 November 1993" for "31 July 1996" as the cut-off date for eligibility is invalid;

* the invalid part of the Rule is severable;

* consequently, the subclass 435 visa through to 31 July 1998 remains available to Sri Lankans in Australia prior to 31 July 1998 or prior to 31 July 1996 rather than on or prior to 1 November 1993.

THE MINISTER'S CASE ON INVALIDITY UNDER THE ACT

The Minister relied upon the width of the regulation making power and contended that regulations prescribing criteria for visas clearly fall within the scope of the power. On the question of reasonableness the Minister made the following submissions.

The amending Regulation must be viewed in the context of the history and rationale of the subclass of visa which it directly affects, as well as in the context of the legislative scheme as a whole. Subclass 435 visas were temporary and had always had limited and short lives. As foreshadowed in July 1996, the government intended to end the series of temporary humanitarian concessions for Sri Lankan nationals. However, it desired to permit certain Sri Lankan nationals and certain others who had been in Australia for relatively lengthy periods without their status being resolved to acquire permanent residence. It selected 1 November 1993 as the cut-off entry date for that purpose for Sri Lankan nationals, being a date which also corresponded with the cut-off entry date for the 816 visa subclass which had itself applied to certain Sri Lankan nationals. The necessary regulations and forms for the complicated 850 and 851 subclasses could not be issued until 1 October 1997. In order to cover the gap in time thus created, the 435 visa was to be temporarily extended by the amending Regulation, but only for those who would be able to satisfy the entry cut-off date requirement of the 850 and 851 classes. Viewed in this way, the amending Regulation is obviously not unreasonable in the sense that it goes beyond the regulation-making power. It is plainly not so oppressive or capricious that no reasonable mind can justify it. It cannot be said that it is not conceivably desirable for the purpose of regulating the coming into and presence in Australia of non-citizens pursuant to the Migration Act 1958 .

INVALIDITY OF A REGULATION MADE UNDER AN ACT

The law applicable to a challenge to the validity of a regulation was considered in The State of South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161. That case concerned the power conferred on the Governor to make regulations. The nature of the power to make the regulations was described by Wilson, Dawson, Toohey and Gaudron JJ in the following terms:

"In order to reduce or prevent the deterioration or pollution of any water within a watershed, the Governor is empowered to regulate, control or prohibit the use of any land within that watershed. There is conferred, therefore, an extensive power governed by a far-reaching purpose." (at 164-165)

After taking into account the wording of the power and the nature of the social problem to be addressed, their Honours said:

"... there must be conceded a broad, rather than a narrow, approach in determining the nexus between the exercise of the power and the achievement of the purpose for which it is conferred." (at 165)

The determination of whether there was such a nexus was to be approached through the application of the reasonable proportionality test. Their Honours said:

"In the course of argument the parties accepted the reasonable proportionality test of validity (cf. Deane J. in The Commonwealth v Tasmania (the Tasmanian Dam Case); namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. However, they differed in the answers to which their application of the test led. The same test, in relation to a power limited to regulation, was expressed by Dixon J. in Williams as being, in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose". (at 165; footnotes omitted)

....

"It is not enough that the court thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power'. (at 168)."

Brennan J explained the problem as one of characterisation. His Honour said:

"... some general propositions may be stated with reference to the validity of a regulation made in exercise of a power which requires that its exercise be conducive to a statutory object. First, as the validity of the regulation depends on whether it answers the statutory description, the problem is one of characterisation. Next, the character of the regulation is ascertained by reference to its operation and legal effect in the circumstances to which it applies. The character of a regulation is ascertained by the court's own assessment of the directness and substantiality of the connexion between the likely operation of the regulation and the statutory object to be served. If the directness and substantiality of the connexion between the likely operation of the regulation and the statutory object is so exiguous that the regulation could not reasonably have been adopted as a means of fulfilling the statutory object, the regulation is invalid. Moreover, it must be steadily borne in mind that the fulfilling of the statutory object is a limitation on the power to make the regulation. A regulation which is so widely drawn as needlessly to embrace a field of operation which is quite unconnected with the statutory object cannot reasonably be adopted in exercise of a power so limited. These are broad tests, involving matters of degree. If upon their application the regulation is found to answer the statutory description, it is immaterial that, in some instances, the regulation will not effect or further the fulfilment of the statutory object. Those instances are material only to the court's assessment of the connexion between the regulation and the statutory object." (At 178-9)

Brennan J also commented on the difficulties arising when validity is contested on a basis which involves issues of fact:

"In this country, when the validity of a law depends on some matter of fact, the fact is not ascertained as though it were a mere issue between the parties. In Commonwealth Freighters Pty. Ltd. v. Sneddon Dixon C.J. said:

`Highly inconvenient as it may be, it is true of some legislative powers limited by definition, whether according to subject-matter, to purpose or otherwise, that the validity of the exercise of the power must sometimes depend on facts, facts which somehow must be ascertained by the court responsible for deciding the validity of the law.'

However, validity is a question of law and questions of law do not depend upon a party's discharge of an onus of proof of facts: Breen v. Sneddon; Gerhardy v. Brown. The court must discover the facts `as best it can': per Dixon C.J. in Commonwealth Freighters. Lord Diplock is right in saying (McEldowney v Forde) that there is a presumption of validity but, to the extent that validity depends on some matter of fact, there is no onus on a challenging party which, being undischarged, will necessarily result in a declaration of validity.

Where the directness and substantiality of the connexion between an impugned regulation and a statutory object can be properly assessed only with an appreciation of some matter of fact of which the repository of the power has special knowledge or experience, the court should not lightly substitute its own assessment for the assessment made by the repository in enacting the regulation. And, as Lord Diplock observed, the court treats the making of the regulation as `cogent evidence' of the repository's belief in its necessity and expediency." (at 179; footnotes omitted)

Lockhart J in Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 at 445-6 summarised the relevant principles as follows:

"Discussion of the validity of a regulation must commence with the determination of the `true nature and purpose of the [regulation-making] power', adopted by Dixon J in Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142 at 155. The approach was approved by Wilson, Dawson, Toohey and Gaudron JJ in a joint judgment in South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 164.

Their Honours adopted with approval the reasonable proportionality test of validity as stated by Deane J in Commonwealth v Tasmania (the Tasmania Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 260, namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. Their Honours stated that the same test in relation to a power limited to regulation (as distinct from outright prohibition) was expressed by Dixon J in Williams at 156 as being in substance whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose. See also the judgment of Brennan J in Tanner at 173-180."

In Bienke v Minister for Primary Industries and Energy (1995) 63 FCR 567 at 578 the Full Court (Black CJ, Davies and Sackville JJ) after considering the reasonable proportionality test said in respect of invalidity on the ground of unreasonableness:

"... unreasonableness has long been a head of invalidity of delegated legislation. For example, in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381 at 384, Lockhart J put the matter this way:

`Delegated legislation may be declared to be invalid on the grounds of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws.'"

The test for invalidity on the supposed ground of unreasonableness is not easily met. As Lockhart J said in Qiu at 446:

"When the validity of a regulation is challenged on the basis that it is `unreasonable', such that it goes beyond the regulation-making power, the word `unreasonable' in this context means that the regulation is so oppressive and capricious that no reasonable mind can justify it: Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977 at 980-983, 986-989; Brunswick Corporation v Stewart [1941] HCA 7; (1941) 65 CLR 88 at 97 and Carter v Egg and Egg Pulp Marketing Board for Victoria [1942] HCA 30; (1942) 66 CLR 557 at 584-585 per Starke J, per McTiernan J at 591 and Williams J at 599. The meaning of `unreasonable' in this context is explained in the cases collected in Brunswick Corporation at 97 and 99."

It may well be that as regulation making powers are purposive in nature, the unreasonableness test is a criterion for determining lack of reasonable proportionality rather than a separate and independent ground of invalidity. Either way, whether the challenge to the validity of a regulation is on the ground that it is not capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose or on the ground of unreasonableness the true basis for either ground is that the regulation is not a real exercise of the power.

The applicants' case is to be considered in the light of these principles.

THE REGULATION MAKING POWER UNDER THE MIGRATION ACT

The wide scope of the regulation making power under the Act was considered by Wilcox J, who, in rejecting a submission of invalidity, observed in Eremin v Minister for Immigration (Federal Court of Australia, 1 August 1990, unreported) at 18-20:

"Section 33(1) is framed in wide terms, empowering the making of regulations `in relation to the granting and refusal of entry permits'. Section 33(2) specifically envisages the making of regulations which provide for different classes of entry permits and which prescribe criteria for each class. It seems that the Parliament was content to leave to the Executive the questions of what classes should be created and what should be their criteria.

....

It is not for the Court to pronounce upon the fairness or wisdom of the regulation, as framed. Those are matters for the Executive. The Court is concerned only with the question whether the regulation falls within the enabling provisions in the Act. Regulation 129 was plainly a regulation `in relation to the granting and refusal of entry permits' and, I think, it was open to the Executive to take the view that it would be `convenient' to adopt the scheme which it envisaged, whereby from time to time the Minister would notify that a particular event had one or more of the qualities specified in the regulation; thereby making that particular class of permit available to those - and only those - who could demonstrate that they had been affected by that event. It is salutary to bear in mind the observations of the High Court of Australia in Morton v Union Steamship Company of New Zealand Limited [1951] HCA 42; (1951) 83 CLR 402 at p.410, in discussing the validity of regulations made under the same statutory warrant as appears in s.181 of the Migration Act:

`A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.

In an Act of Parliament which lays down only the main outlines of policy and indicates an intention of leaving it to the Governor-General to work out that policy by specific regulation, a power to make regulations may have a wide ambit. Its ambit may be very different in an Act of Parliament which deals specifically and in detail with the subject matter to which the statute is addressed. In the case of a statute of the latter kind an incidental power of the description contained in s.164 cannot be supposed to express an intention that the Governor-General should deal with the same matters in another way.'

In relation to the granting and refusal of entry permits, the Migration Act is one `which lays down only the main outlines of policy and indicates an intention of leaving it to the Governor-General to work out that policy by specific regulations'."

An appeal from the decision of Wilcox J in Eremin was dismissed by the Full Court (Lockhart, Gummow and Foster JJ): see [1990] FCA 326; (1990) 21 ALD 69. Their Honours observed:

"No doubt the operation of reg 129 may be seen as harsh in some respects, but it has been drawn in a manner which to us appears consistent with a legislative scheme with some draconian characteristics. But the scheme reflects a policy, the formulation or criticism of which is not for the judicial branch of government.

It follows from what we have said that the appeal fails and should be dismissed with costs." (at 77)

I do not accept the Minister's submission that the policy purposes and the width of the regulation making power under the Act renders regulations made in purported exercise of the power immune from challenge. However, the decision in Eremin demonstrates the difficulties confronting a claim of invalidity in relation to a regulation made under the Act prescribing criteria for a visa or a visa of a specified class. Primarily, the difficulties arise as a consequence of:

* the width of the regulation making power and its object;

* the breadth of the discretion reposed by the legislature in the Governor-General in determining the criteria to be applied in respect of visas;

* the generality of the statement of the object of the Act in s 4 which, relevantly, provides for visas permitting non-citizens to enter or remain in Australia to be granted to advance "the national interest"; and

* the fact that power to make regulations under the Act inherently involves matters of policy.

However, notwithstanding these difficulties, the regulation making power is not a matter that is left entirely to the discretion of the executive branch of government. In exercising the discretion the executive branch is subject to the reasonable proportionality or unreasonableness tests as explained in the cases to which I have referred.

ARE STATUTORY RULES 184 AND 279 A VALID EXERCISE OF POWER?

In my view, the regulations prescribing criteria for subclasses 435, 850 and 851, as set out in Statutory Rules 184 and 279 of 1997, fall within the statutory description of regulations that may be made under ss 31 and 504 of the Act and are capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose of prescribing criteria to advance the national interest. They answer the statutory description as the regulations prescribe criteria for a visa or a specified class of visa. They satisfy the proportionality test as it is not unreasonable or disproportionate in the sense discussed in the cases to which I have referred to afford certain longer term temporary visa holders an opportunity to become permanent residents by establishing the scheme comprised in subclasses 435, 850 and 851 to enable that object to be achieved. I have referred to the scheme comprising the three subclasses as it is quite unrealistic to consider each category separately - the subclasses were inter-related and were made in their present form as part of the same scheme, being the scheme the subject of the 13 June 1997 announcement.

I accept that there was necessarily some arbitrariness in the selection of the 1 November 1993 cut-off date for eligibility. I say "necessarily" as the evidence to which I have referred earlier establishes that that date was selected after balancing a number of discretionary policy considerations. I am satisfied that those considerations, which were set out in the letter of the Assistant Secretary of the Migration Branch and essentially related to policy questions, were relevant and reasonable and were matters to which the executive branch of government was entitled to have regard in relation to the exercise of the regulation making power under the Act. As was stated in the letter, the subclass 850 and 851 visas were not a response to the present day situations in the various countries; they were a response to the circumstances of a number of groups who had been allowed to remain temporarily in Australia and whose status in Australia remained unresolved.

In my opinion, so viewed, the regulations establishing the subclass 850 and 851 visas clearly fall within and constitute a real exercise of the regulation making power. Once that conclusion is reached it must follow that it is appropriate to ensure that certain Sri Lankan applicants eligible for the 850 and 851 subclasses are lawful non-citizens in Australia at the date of their application. That is all the extended subclass 435 visa does.

The further, and in my view discrete, decision of the Minister not to extend further the humanitarian visas embodied in the previous subclass 435 visa arrangements up to 31 July 1997 (which was foreshadowed in the announcement made on 1 July 1996 extending those visas to 31 July 1997) was a decision which, as a matter of policy, was open to the government to make. The applicants had no right under the Act or in law to compel the government to further extend their subclass 435 visas.

The real complaint of the applicants in the present case is that in the process of providing for permanent visas for certain Sri Lankan citizens the temporary humanitarian visa arrangements for Sri Lankans were arbitrarily terminated notwithstanding that the humanitarian reasons for creating the visas (the state of war and associated violence and terror existing in Sri Lanka) remained unchanged. Putting aside the fact that the Minister foreshadowed a different opinion on that issue when the last extension of the subclass 435 visa arrangements was announced, in my view the making of regulations creating and defining the nature and period of operation of humanitarian visa arrangements are the very kind of policy matters which Parliament reposed in the Governor-General under the Act. Although there must always be a real exercise of the regulation making power in the sense discussed earlier in these reasons any applicant that seeks to challenge an exercise of the power by reference to policy considerations of the kind to which I have just referred faces a daunting task. The present case affords a good example of the difficulties arising. The policy issue for government was not so much whether the situation in Sri Lanka had improved but rather whether, in all the circumstances (including matters of government policy and the situation in Sri Lanka) the situation was such that it was no longer appropriate to further extend humanitarian visas given to Sri Lankan citizens in Australia. As is apparent such matters are essentially matters of policy for government rather than for the courts. Accordingly, if and to the extent that Statutory Rule 184 can be interpreted as not continuing the previous scheme of temporary humanitarian visas, I am satisfied that the regulations were not unreasonable in the sense required by the cases.

There can be no doubt that in implementing the proposed changes to existing visa arrangements for Sri Lankan nationals the imposition and operation of the cut-off date of 1 November 1993 may be seen to be harsh in some respects, but it has been selected in a manner which appears to be consistent with the legislative scheme established under the Act. As was said by Dixon J in Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142 at 155 a "by-law" (and I would add, "a regulation") "will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power."

For the reasons set out above, whether on the basis of reasonable proportionality or reasonableness, I am satisfied that Statutory Regulations 184 and 279 of 1997 were a real exercise of the power conferred on the Governor-General under the Act. Accordingly, for the above reasons the challenge based on invalidity fails.

SEVERANCE

If, contrary to my conclusion, invalidity was established, the applicants' case would also confront the difficult task of severing the new cut-off date for eligibility of "1 November 1993" but otherwise leaving the subclass 435 visa intact with either no real cut-off date, or the previous cut-off date, of 31 July 1996, remaining applicable.

Although the applicants relied upon s 46(1)(b) of the Acts Interpretation Act 1901 (Cth) severance cannot be achieved if it will result in changing the basic character and operation of the statutory instrument: see Coleman v Gray (1994) 55 FCR 412 at 429-430 per Gummow J. His Honour said:

"Section 46 of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act) like s15A thereof deals with severance in federal law. Section 46 applies to an instrument identified as a plan of management determined by the Minister under the Act: Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 at 166. Section 46(1)(b) of the Interpretation Act states:

`(1) Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:

(a) ...

(b) any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power.'

This provision also applies to notices published by the Minister under s8 of the Act, such as SEF1.

The effect of a severance provision such as this was described as follows by Dixon J in Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 371:

`[T]he courts have insisted that a provision...must share the fate of so much of the statute, regulation or order as is found to be invalid, once it appears that the rejection of the invalid part would mean that the otherwise unobjectionable provision would operate differently upon the persons, matters or things falling under it or in some other way would produce a different result. This consideration supplies a strong logical ground for holding provisions to be inseverable, whether the prima-facie presumption be in favour or against severability. It is important where there is no statutory clause like s15A and it is important in using s15A. For the inference in such a case is strong that provisions so associated form an entire law and that no legislative intention existed that anything less should operate as a law.

Further, where severance would produce a result upon the persons and matters affected different from that which the entire enactment would have produced upon them, had it been valid, it might be said with justice that unless the legislature had specifically assented to that result, contingently on the failure of its primary intent, it could not amount to a law."

See also the further application of this reasoning in Strickland v Rocla Concrete Pipes Pty Ltd [1971] HCA 40; (1971) 124 CLR 468 at 494, 503-504, 520-527."

I have no doubt that the severance sought in the present case would basically change the character and operation of the visa arrangements intended to be carried into effect by Statutory Rules 184 and 279. The purpose of Statutory Rule 184 was to substitute a new temporary subclass 435 visa scheme to that which existed previously. The Rule enabled the temporary grant of lawful status under a subclass 435 visa to those potentially eligible to apply for the new subclass 850 and 851 visas and not otherwise. The severance sought would basically defeat the intended purpose, function and operation of Statutory Rule 184 in relation to Sri Lankan citizens. Accordingly if, contrary to my view, the new cut-off date was invalid, in my view it is not severable in the manner contended for by the applicants. In these circumstances even if the applicants succeeded in their challenge to validity that would not result in any entitlement accruing on their part to apply for an extension or renewal of the subclass 435 visas for which they had applied.

For the above reasons the case sought to be made by the applicants in relation to the making of Statutory Rules 184 or 279 fails.

THE RACIAL DISCRIMINATION ACT

The RD Act implements the International Convention on the Elimination of all Forms of Racial Discrimination. Sections 9(1), 9(1A) and 9(2) of the RD Act provide:

"9(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

9(1A) Where:

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b) the other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.

9(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention."

The applicants relied upon the following human rights or fundamental freedoms in Article 5:

* the right to equality before the law (Art 5(a));

* the right to freedom of movement and residence within the borders of Australia (Art 5(d)(i));

* the right to own property (Art 5(d)(v));

* the right to work (Art 5(e)(i));

* the right to education and training (Art 5(e)(v)).

THE APPLICANTS' CASE ON THE RD ACT

Counsel for the applicants accepted that:

* the RD Act and the Convention do not apply to distinctions, exclusions, restrictions or preferences made by a State between citizens and non citizens (see Article 1.2); and

* as the applicants were unable to rely on distinctions between Australian citizens and non-citizens the distinctions the applicants relied upon were as between Sri Lankan nationals and between Sri Lankan nationals and certain other non-Australian nationals.

Accordingly, the applicants' case was that the making of Statutory Rule 184 (and if necessary Statutory Rule 279) constituted unlawful racial discrimination under ss 9(1) or 9(1A) of the RD Act insofar as they imposed the cut-off date of 1 November 1993 for Sri Lankan nationals wishing to remain lawfully in Australia. It was contended that the unlawful discrimination arose in one of two ways. First, it was said that discrimination arose as a consequence of the imposition of different cut-off dates for the entitlement of persons of different nationalities to be eligible for the subclass 435, 850 and 851 visas (ie Kuwait and Iraq (31 October 1991); Lebanon (30 November 1991) and China, Sri Lanka and the former Yugoslavia region (1 November 1993)). Second, it was said that it arose as a consequence of discrimination between Sri Lankan nationals arriving in Australia before and after 1 November 1993.

Initially the applicants also relied upon s 10 of the RD Act but in her final submissions counsel for the applicants confined her case to ss 9(1) and 9(1A).

THE RD ACT CLAIMS

Direct Discrimination (s 9(1))

(a) National Origin

In any case involving an allegation of unlawful racial discrimination under ss 9(1) it is important to identify with some precision the act (which under s 3(3) is deemed to include refusing or failing to do an act) which is alleged to constitute the unlawful conduct. In the present case the alleged act is the making of Statutory Rules 184 and 279 in so far as they imposed 1 November 1993 as the cut-off date for eligibility for the relevant visas for citizens of Sri Lanka who were usually resident there prior to entering Australia before 1 November 1993. The discrimination complained of is said to be against Sri Lankan citizens who were resident in Sri Lanka immediately prior to their date of entry into Australia after 1 November 1993:

* as against citizens of Iraq, Kuwait and Lebanon who entered Australia prior to 31 October or 30 November 1991 (as the case may be); or

* as against Sri Lankan citizens resident in Sri Lanka immediately prior to their entry on or prior to 1 November 1993.

The RD Act does not prohibit discrimination by reference to current nationality; it prohibits discrimination by reference to national origin. The judicial view that has emerged is that there is a significant difference between the two concepts: see Ealing London Borough Council v Race Relations Board [1971] UKHL 3; [1972] AC 342, 358, 363-4, 365; Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 at 471-2 per Drummond J and Australian Medical Council v Wilson (1996) 68 FCR 46 at 75 per Sackville J where his Honour said:

"... the phrase `national origin', which is used in both s 9(1) and s 9(1A), has received consideration by the House of Lords, in the context of a claim brought under the Race Relations Act 1968 (UK): Ealing London Borough Council v Race Relations Board [1971] UKHL 3; [1972] AC 342. Section 1(1) of that Act provided that, for the purposes of the legislation, a person discriminates against another if `on the ground of colour, race or ethnic or national origins he treats that other...less favourably than he treats or would treat other persons'. The majority of the House of Lords held that a requirement that persons seeking public housing be British subjects, did not contravene s 1(1).

The majority rejected the contention that the phrase `national origins' refers to current nationality. Viscount Dilhorne concluded (at 358), having regard to the `racial objects' of the legislation, the words were intended to refer to `national' in the sense of race and not citizenship. The national origins of the particular applicant were Polish, since his race was Polish. The housing authority had not discriminated against him because of racial origins, but because he was not a British subject. Lord Simon took a similar approach, emphasising (at 363-364) that `national origins' did not necessarily imply statehood. His Lordship took the view that to discriminate, for example, against English, Scots or Welsh, as such, would be to discriminate on the ground of their national origins. Thus, had the applicant been refused housing because of his Polish descent, he would have been discriminated against on the ground of his `national origins'.

Lord Cross said this (at 365):

`There is no definition of 'national origins' in the Act and one must interpret the phrase as best one can. To me it suggests a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as a 'nation' - whether or not they also constitute a sovereign state. The connection will normally arise because the parents or one of the parents of the individual in question are or is identified by descent with the nation in question, but it may also sometimes arise because the parents have made their home among the people in question... Of course, in most cases a man has only a single 'national origin' which coincides with his nationality at birth in the legal sense and again in most cases his nationality remains unchanged throughout his life. But 'national origins' and 'nationality' in the legal sense are two quite different conceptions and they may well not coincide or continue to coincide."

Not all of the reasons put forward in the speeches of the majority in support of these conclusions apply to the RD Act: see at 361-363, per Lord Simon. Nonetheless, there is powerful independent support for the conclusion that `national origin', as used in s 9 of the RD Act, does not simply mean citizenship. Article 1(2) of the Convention specifically provides that the Convention is not to apply to distinctions, exclusions, restrictions or preferences made by a State Party between citizens and non-citizens. In my opinion, Ealing provides guidance for Australian courts concerning the meaning of the phrase `national origin', as used in s 9 of the RD Act."

See also Yildiz v Minister for Immigration and Ethnic Affairs (1982) 46 ALR 112 at 121 per Jenkinson J and Sremcevic v Gurry (1994) 123 ALR 255 at 270 per Wilcox J.

The discrimination alleged in the present case is not based on national origin; rather, at best for the applicants, one of its bases relates to nationality at or since a specified date, being 1 November 1993. Although there are obvious difficulties in any precise definition of "national origin" as that term is used in the RD Act, in my view it does not mean current nationality or nationality at a particular date which has no connection with the national origin of the persons concerned. Accordingly, any case of direct discrimination under s 9(1) must fail on that ground alone.

Subclass 435, 850 and 851 visas afford longer term residents of certain nationalities, who have enjoyed temporary humanitarian visas to stay in Australia, an opportunity to become entitled to permanent residence. The scheme creating those visas in their present form and embodied in Statutory Rules 279 and 184 resolves the status of certain foreign nationals who have had an extensive period of continuous residence in Australia primarily by reference to the length of that period. Accordingly, the real difficulty confronting the applicant's case is that the true basis of any distinction in the regulations in relation to eligibility for any of the visas in question is not by reference to nationality or national origin but by reference to date of an individual's entry into and continuous residence in Australia. The fact that different cut-off dates were selected, inter alia, by reference to prior concessional arrangements for the various nationalities does not alter that conclusion.

(b) A Human Right or Fundamental Freedom

A further difficulty confronting the applicants' case is that for any act to constitute unlawful discrimination, in addition to involving a distinction based on national origin or another prohibited ground, it must also have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of any human right or fundamental freedom. As the basis of any relevant distinction is date of entry into and period of residence in Australia there are no grounds on which the purpose of the amendment to the regulations could be said to nullify or impair any human right or freedom.

Put at its highest the applicant's case is that the effect of the distinction complained of is that as a result of the failure of the government to extend the previous subclass 435 visa, certain non-citizens cannot continue to remain lawfully in Australia during a period in which their homeland (ie the country of which they are citizens and usually resident) has continued to be in a state of serious disruption or turmoil which is such that they might face acute difficulties if required to return. To fall within s 9(1), the failure to extend the subclass 435 visa must nullify or impair the recognition, enjoyment or exercise, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. Putting aside the special position of refugees, which does not arise as none of the applicants put their claims in this proceeding on the basis of eligibility for refugee status, Article 5 of the Convention does not recognise any right of non-citizens to remain where they are temporarily resident in such circumstances. Further, the applicants have not demonstrated the recognition of such a right as a human right or fundamental freedom in any other context.

Accordingly, it is simply not correct for the applicants to contend that they have been denied the rights and freedoms referred to in Article 5. The reality is that they have enjoyed those rights and freedoms in accordance with Australian law for so long as they remained lawfully resident in Australia. When non-citizens' rights of lawful residence come to an end, subject to the special position of claimants for refugee status, they have no right or freedom to continuing residence which is not provided for under domestic law.

(c) Discrimination

The applicants' case of discrimination is misconceived on an additional basis. Insofar as discrimination was alleged in the treatment of different nationals under the two Statutory Rules in question, it could only have been discrimination against nationals of Iraq, Kuwait and Lebanon who had entered Australia at an earlier date and therefore were subject to more stringent cut-off dates than nationals of China, Sri Lanka and the former Yugoslavia who enjoyed the benefit of a later cut-off date. If that discrimination was unlawful on any ground that would be of little assistance to the applicants who were treated more favourably. In any event as the true basis of the distinction drawn in the regulations is by reference to the date of entry into and period of continuing residence in Australia it is not by reference to nationality, let alone national origin. The differing cut-off requirements for entry were arrived at by balancing a number of factors which did not appear to be based on nationality or national origin.

In summary, insofar as a distinction was drawn as between Sri Lankan nationals or between Sri Lankan and other nationals it was by reference to the date of their entry and period of residence in Australia. In these circumstances the necessary nexus between the discrimination alleged and national origin is absent as the Statutory Rules did not select matters of race, colour, descent or national or ethnic origin as the criteria for determining the rights of persons to remain lawfully in Australia: see Lewis v Trebilco [1984] FCA 93; (1984) 53 ALR 581 at 587 per Bowen CJ, Lockhart and Morling JJ and Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 at 449-450 per Lockhart J.

Indirect Discrimination (s 9(1A))

Section 9(1A) sets out the circumstances in which a term, condition or requirement, which does not itself directly involve a distinction based on racial or other prohibited grounds, might indirectly result in discrimination on prohibited grounds.

In the present case, the relevant "requirement" for the purposes of s 9(1A) (a) and (b), is that Sri Lankan nationals wishing to obtain the visa in question must be Sri Lankan nationals who entered Australia on or before 1 November 1993 and had prior usual residence in Sri Lanka. The requirement must, inter alia, be one which is "not reasonable" (s 9(1A)(a)) and have the purpose or effect of nullifying or impairing a human right or fundamental freedom (s 9(1A)(c)).

(a) Reasonableness

Under s 9(1A)(a) the applicants are required to satisfy the court that, having regard to the circumstances of the case, the cut-off date selected under the relevant Statutory Rules for Sri Lankan nationals was "not reasonable". I adopt the meaning of that phrase as explained in the cases relating to s 9(1A) or its statutory equivalent in other human rights legislation: see Australian Medical Council v Wilson (1996) 68 FCR 46 at 60-61 and Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1, 12-13, 32-34. Earlier in these reasons, in relation to the reasonableness of the exercise of the regulation-making power, I referred to the evidence of the Assistant Secretary to the Migration Branch which set out the factors which led the Governor-General to make the relevant regulations in their present form and to select the cut-off dates set out in those regulations. In my view it is reasonable in the sense that that word has been used in s 9(1A) for the Government to enable non-citizens, who have had an uncertain status but who have resided for a substantial length of time in, and thereby established significant links with, Australia to become eligible for permanent residence and for that purpose to select a cut off date by reference to the matters set out by the Assistant Secretary. It is significant that, contrary to the applicants' contentions, the relevant visas and the cut-off dates for eligibility have been structured primarily by reference to length of residence in Australia and are not a response to the present day situations in Sri Lanka and the other countries whose nationals might be eligible for the visas. The applicants have not established that, in the circumstances of the case, the requirements imposed on Sri Lankan nationals under the regulations for eligibility for subclass 435, 850 and 851 visas and in particular the cut-off date were "not reasonable".

(b) Human Right or Fundamental Freedom

Section 9(1A)(c) is also not satisfied because the requirement does not have the purpose or effect of nullifying or impairing a human right or fundamental freedom. The reasons for that are the same as those that I have set out above in relation to s 9(1).

For these reasons the applicants' claims based on the RD Act have not been made out.

CONCLUSION

Accordingly the application is to be dismissed. I propose to hear the parties on the question of costs.

I certify that this and the preceding twenty-five (25) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel

Associate:

Dated: 19 February 1998

Counsel for the Applicant:	Ms D Mortimer
Solicitor for the Applicant:	Erskine Rodan & Associates
Counsel for the Respondent:	Mr A Cavanough QC with Mr O P Holdenson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 February 1998
Date of Judgment:	19 February 1998