Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen

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.