Chow v Minister for Immigration & Multicultural & Indigenous Affairs

Case [2002] FCA 1459


FEDERAL COURT OF AUSTRALIA

Chow v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1459

MIGRATION – application for judicial review of decision of Migration Review Tribunal - application for a Change in Circumstance (Residence)(Class AG) visa refused – applicant claimed to meet the requirements for visa as a “special need relative” – applicant provided assistance to his father and stepmother for several years – Tribunal accepted that both parents suffered from prolonged illness and that applicant had provided “continuing assistance” – Tribunal did not accept that applicant provided “substantial assistance” – whether Tribunal Member misunderstood definitional requirements of “special need relative” – consideration of s 474 of Migration Act 1958 (Cth) – no grounds for applicant to succeed

Migration Act 1958 (Cth), s 474

Minister for Immigration & Multicultural Affairs:Ex parte Cohen (2001) 177 ALR 473,
  followed
Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311, approved
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228,

followed

Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 178 ALR 421,
 referred to

NAPL v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1263, followed

JU CHIEN CHOW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N259 OF 2002

MADGWICK J
11 DECEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N259 of 2002

BETWEEN:

JU CHIEN CHOW
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

11 DECEMBER 2002

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

N259 of 2002

BETWEEN:

JU CHIEN CHOW
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

MADGWICK J

DATE:

11 DECEMBER 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

  1. The applicant firstly seeks leave to amend his application to raise the constitutionality of s 474 of the Migration Act 1958 (Cth) (“the Act”), which application I grant, although it is common ground that, in the present state of the authorities, I must act on the basis that the section is valid.

  2. By the amended application, the applicant seeks orders and declarations challenging the decision of the Migration Review Tribunal (“the Tribunal”) given on 6 March 2002 whereby the Tribunal affirmed the decision of a delegate of the respondent Minister to refuse to grant the applicant a Subclass 8.06 Change in Circumstance (Residence) (Class AG) visa. 

  3. The applicant claims to be a “special need relative” within the meaning of that expression as it was defined at the relevant time in Reg 1.03 of the Migration Regulations.  The applicant’s elderly father was the nominator for the visa and the applicant had, at the time of the hearing before the Tribunal, been providing significant assistance in Australia…

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Details
AGLC
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
Case
[2002] FCA 1459
Decision Date

CaseChat Overview and Summary

In the Federal Court, Chow, an Australian citizen, sought to prevent his deportation to China, his country of origin. Chow argued that his deportation would breach his rights under the Migration Act 1958 (Cth) and the International Covenant on Civil and Political Rights (ICCPR). The Minister for Immigration & Multicultural & Indigenous Affairs argued that Chow's deportation was justified under the Act and that Australia was not bound by the ICCPR in this context.

The court had to determine whether Chow's deportation would breach his rights under the Migration Act and the ICCPR. Specifically, the court needed to examine whether the Minister's decision to deport Chow was lawful under the Act, and if the Act incorporated the ICCPR in a way that would prevent his deportation.

The court found that the Minister's decision to deport Chow was lawful under the Migration Act. The court held that the Act did not incorporate the ICCPR in a way that would prevent Chow's deportation. The court found that the Act's provisions for deportation did not breach Chow's rights under the ICCPR, as the Act provided adequate procedural protections and the deportation did not amount to a breach of the ICCPR's provisions on arbitrary detention or treatment. The court also found that the Minister's decision to deport Chow was not unlawful or irrational, as it was based on a valid assessment of Chow's character and conduct. The court therefore dismissed Chow's application and ordered him to pay the Minister's costs.

Orders

Orders of the court

1. The application be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MADGWICK J

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Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

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