McCarthy v Minister for Immigration and Ethnic Affairs

The appeal in this case was brought by John Joseph McCarthy, who sought to have the decision of the Immigration Review Tribunal (IRT) reviewed. The IRT had affirmed a decision of the Minister for Immigration and Ethnic Affairs to refuse to grant a December 1989 (temporary) entry permit to Taniela Veamatahau. The application for the entry permit had been made on compassionate grounds, on the basis that refusal of the permit would cause extreme hardship or irreparable prejudice to the appellant and the Tongan parishioners attending his church. The primary judge had dismissed the appeal and the appellant appealed to the Full Court. The appeal was dismissed by the Full Court. The court held that the IRT and the primary judge had not erred in law in concluding that the appellant was the sole relevant related person for the purposes of Regulation 131A(1)(d)(v) and (g) of the Migration Regulations 1989. The court held that the legislative scheme required the prescribed criteria to be satisfied at the time of the application for the entry permit. The appellant had nominated the applicant at the date of the application. At that date and indeed at any relevant later date, it had not been established that any other person had nominated the applicant. The court held that the issue was to be determined by identifying the relevant related person who had in fact nominated the applicant at the date of the application. Only the appellant satisfied the criteria in that regard. The court held that the primary judge's conclusions were correct and that the appeal should be dismissed with costs.