RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ORS RESPONDENTS
EX PARTE MEIR COHEN APPLICANT
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10 1 March 2001 S166/2000
ORDER
Application dismissed with costs.
Representation:
R T Beech-Jones for the first respondent (instructed by Sparke Helmore)
No appearance for the second and third respondents
D C Rangiah for the applicant (instructed by Dominic David Stamfords)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen
Constitutional law – Constitutional relief – Jurisdictional error – Whether the Migration Review Tribunal made a jurisdictional error.
Practice and procedure – Constitutional relief – Migration Regulations 1994 (Cth) – Whether the applicant was entitled to have his application determined on the basis that the "special need relative" criterion was still available.
Practice and procedure – Constitutional relief – Remitter to the Federal Court – When remitter to the Federal Court is appropriate.
Practice and procedure – Constitutional relief – Whether writ of prohibition properly sought against the Minister.
Practice and procedure – Constitutional relief – Whether writ of mandamus properly sought against the Principal Member of the Migration Review Tribunal.
McHUGH J. This is an application for an injunction and for orders nisi for writs of prohibition, mandamus and certiorari. The applicant seeks these remedies in order to overturn a decision of the Migration Review Tribunal dated 21 June 2000. The application must be dismissed.
Background and procedural history
The applicant, an Israeli national, met a woman, Monique Hill, in Japan in February 1997. A relationship developed between them until Ms Hill became pregnant to the applicant in April 1997. Ms Hill then returned to Australia, and the applicant later returned to Israel. A boy, known as Ariel, was born on 26 December 1997.
The applicant came to Australia on 2 April 1998. He and Ms Hill resumed their relationship, but apparently it did not prosper. When the applicant arrived in Australia, he held a visa which entitled him to stay in Australia until 2 October 1998. In September 1998, he applied for a "Family (Residence) (Class AO) visa", which the Migration Review Tribunal described as a "subclass 806 'special need relative' visa".
In January 1999, the Minister's delegate refused to grant the applicant a visa. In April 1999, a review officer affirmed the delegate's decision. According to the Migration Review Tribunal:
"The … applicant lodged an application for review with the Immigration Review Tribunal on 14 May 1999. This became an application for review to the Migration Review Tribunal on 1 June 1999 by way of a transitional provision in the Migration Legislation Amendment Act (No 1)1998 [Act No 113 of 1998[1]]. The decision is reviewable by the [Migration Review] Tribunal".
[1]Item 41(1) of Sched 1 to Act No 113 of 1998 provides:
"For the purposes of Part 5 of…
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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Details
AGLC
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10
Case
[2001] HCA 10
Decision Date
CaseChat Overview and Summary
This matter concerned an application by an Israeli national for constitutional relief, including injunctions and writs of prohibition, mandamus, and certiorari, to overturn a decision of the Migration Review Tribunal. The applicant sought to challenge the Tribunal's affirmation of a delegate's decision to refuse him a "subclass 806 'special need relative' visa". The application was heard by McHugh J of the High Court of Australia.
The central legal issues before the court were whether the Migration Review Tribunal had made a jurisdictional error in its decision, and whether the applicant was entitled to have his visa application determined on the basis that the "special need relative" criterion remained available. The court also considered the appropriateness of remitting the matter to the Federal Court and whether the writs of prohibition and mandamus were properly sought against the Minister and the Principal Member of the Migration Review Tribunal, respectively.
McHugh J found that the applicant's application for review was lodged with the Immigration Review Tribunal before the commencement of the Migration Legislation Amendment Act (No 1) 1998, and was therefore taken to be an application properly made under the amended Act. However, the court determined that the "special need relative" criterion, as defined in regulation 1.03 of the Migration Regulations 1994 (Cth), was not available at the time the applicant's application was to be decided by the Tribunal. The Tribunal had correctly applied the law as it stood at that time. Consequently, the applicant had not been denied a jurisdictional right.
The application for constitutional relief was dismissed with costs.
Orders
Orders of the court
Application dismissed with costs.
Background
Background to the litigation
Mc This is an application for an injunction and for orders nisi for writs of prohibition, mandamus and certiorari. The applicant seeks these remedies in order to overturn a decision of the Migration Review Tribunal dated 21 June 2000. The application must be dismissed.Background and procedural history The applicant, an Israeli national, met a woman, Monique Hill, in Japan in February 1997. A relationship developed between them until Ms Hill became pregnant to the applicant in April 1997. Ms Hill then returned to Australia, and the applicant later returned to Israel. A boy, known as Ariel, was born on 26 December 1997. The applicant came to Australia on 2 April 1998. He and Ms Hill resumed their relationship, but apparently it did not prosper. When the applicant arrived in Australia, he held a visa which entitled him to stay in Australia until 2 October 1998. In September 1998, he applied for a "Family (Residence) (Class AO) visa", which the Migration Review Tribunal described as a "subclass 806 'special need relative' visa". In January 1999, the Minister's delegate refused to grant the applicant a visa. In April 1999, a review officer affirmed the delegate's decision. According to the Migration Review Tribunal:"The … applicant lodged an application for review with the Immigration Review Tribunal on 14 May 1999. This became an application for review to the Migration Review Tribunal on 1 June 1999 by way of a transitional provision in the Migration Legislation Amendment Act (No 1)1998 [Act No 113 of 1998[1]]. The decision is reviewable by the [Migration Review] Tribunal".[1]Item 41(1) of Sched 1 to Act No 113 of 1998 provides:"For the purposes of Part 5 of the Migration Act1958 as amended by this Act, if:(a)before the commencement of this Schedule, an application had been properly made under section 347 of that Act for review of a decision; and(b)the applicant had not been given a statement relating to the review under section 368 of that Act before that commencement;the application is taken to be an application properly made, on the day of that commencement, under section 347 of that Act as amended by this Act." In May 2000, the Migration Review Tribunal ("the Tribunal") heard the application. In June 2000, the Tribunal affirmed the decision under review.The legislation When the applicant applied for a "Family (Residence) (Class AO) visa", subclass 806 of the Migration Regulations 1994 (Cth) relevantly provided:"806.21 Criteria to be satisfied at time of application...806.213 The applicant is … a special need relative of another person who:(a)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and(b) is usually resident in Australia; and(c)has nominated the applicant for the grant of the visa.806.22 Criteria to be satisfied at time of decision806.221 The applicant continues to satisfy the criteria in clause 806.213." (emphasis added)At that time, reg 1.03 of the Migration Regulations provided:"'special need relative', in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:(a)the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and(b)the assistance cannot reasonably be obtained from:(i)any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or(ii)welfare, hospital, nursing or community services in Australia." (emphasis added)The Tribunal's decision