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
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:
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.
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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.