RE PHILLIP RUDDOCK, IN HIS CAPACITY FIRST RESPONDENT AS THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
KIM WILSON, IN HER CAPACITY AS A SECOND RESPONDENT MEMBER OF THE IMMIGRATION REVIEW TRIBUNAL
SUE TONGUE, IN HER CAPACITY AS THIRD RESPONDENT THE PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
EX PARTE ALICIA REYES APPLICANT
Re Ruddock & Ors; Ex parte Reyes [2000] HCA 66 27 September 2000 S240/2000
ORDER
Applications dismissed.
Ex Tempore Judgment
Representation:
D J Watson for the first respondent (instructed by the Australian Government Solicitor)
No appearance for the second and third respondents
B M Zipser for the applicant (instructed by the applicant)
Notice: This copy of the Court's Ex Tempore Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re Ruddock & Ors; Ex parte Reyes
Constitutional law – Constitutional relief – Jurisdictional error – Whether the Immigration Review Tribunal made a jurisdictional error.
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.
Practice and procedure – Constitutional relief – Whether person constituting tribunal should be respondent to application for constitutional relief.
McHUGH J (Ex Tempore). This is an application made, without filing any documents, for an injunction against the Minister for Immigration and Multicultural Affairs to restrain him from deporting the applicant, Alicia Reyes, and her family tomorrow. The application for an injunction is made in the context of an application, which has been filed in the Court today, for orders nisi to be issued directed to three persons. The first is Mr Phillip Ruddock in his capacity as the Minister for Immigration and Multicultural Affairs, the second is Ms Kim Wilson in her capacity as a member of the Immigration Review Tribunal, and the third is Ms Sue Tongue in her capacity as the principal member of the Migration Review Tribunal.
The draft order nisi calls on the three respondents to show cause why a writ of prohibition should not be issued out of this Court directed to the Minister prohibiting him or his agents or delegates from acting upon or giving effect to or enforcing a decision of the second respondent made on or about 23 February 1998. In that decision, the second respondent held that neither the applicant nor her husband were entitled to the grant of a class 816 special permanent entry permit.
The respondents are also asked to show cause why a writ of certiorari should not be issued out of this Court directed to the second respondent removing into this Court and quashing the decision. Finally, the respondents are asked to show cause why a writ of mandamus should not be issued out of this Court directing the third respondent to appoint a member of the Migration Review Tribunal to rehear and determine the applicant's application…
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
Re Ruddock; Ex parte Reyes [2000] HCA 66
Case
[2000] HCA 66
Decision Date
CaseChat Overview and Summary
The applicants, Mr. and Mrs. Reyes, sought constitutional relief in the form of writs of prohibition and mandamus against the Minister for Immigration and Multicultural Affairs and the principal member of the Migration Review Tribunal, respectively. The dispute concerned whether the Immigration Review Tribunal had made a jurisdictional error in its decision regarding the applicants' migration matters.
The central legal issues before the Court were whether the Immigration Review Tribunal had indeed committed a jurisdictional error, and if so, whether the constitutional relief sought by the applicants was properly directed against the Minister and the principal member of the Tribunal. The Court was also required to consider whether the person constituting the tribunal should be a respondent to an application for constitutional relief.
McHugh J dismissed the applications. While the judgment was ex tempore, the reasoning indicated that the applicants had not established a jurisdictional error on the part of the Immigration Review Tribunal. Consequently, the applications for writs of prohibition and mandamus were refused.