Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1395

FEDERAL COURT OF AUSTRALIA

Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1395 MIGRATION – judicial review – application for Change in Circumstance (Residence) (Class AG) visa, subclass 806 – definition of "remaining relative" – definition amended on more than one occasion – which version of definition should be applied at time of application – whether same definition applied at time of decision – whether Tribunal took into account irrelevant considerations when determining where second applicant's parents were "usually resident" – whether applicants should now be allowed to argue that they could satisfy new form of regulation if remitted to Tribunal – whether Court should exercise discretion to refuse relief

WORDS AND PHRASES – "remaining relative" Judiciary Act 1903 (Cth) s 39B Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Migration Act 1958 (Cth) s 45(1) Migration Regulations 1994 (Cth) reg 1.15; Sch 1, item 1107; Sch 2, Pt 806, cl 806.213 and 806.221 Migration Amendment Regulations 1999 (No. 13) (Cth) regs 4 and 5; Sch 2, item 2109 Migration Amendment Regulations 2002 (No. 5) (Cth) reg 4 and Sch 2, item 2101 Acts Interpretation Act 1901 (Cth) s 48(2)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 492-494 and 506, referred to Scargill v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 259, applied Bagus v Minister for Immigration, Local Government and Ethnic Affairs (1994) 50 FCR 396 at 402-403, referred to Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161, applied Toowoomba Foundry Pty Ltd v The Commonwealth (1945) 71 CLR 545, applied Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550, applied Ogston v Repatriation Commission [1999] FCA 342 at [12], referred to Xiang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 64 at [8]-[9], referred to Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719 at 733-734, followed J C Decaux Pty Ltd v Adshel Street Furniture Pty Ltd (2000) 178 ALR 339 at 344, referred to Issitch v Worrell (2000) 172 ALR 586 at 594-595, referred to Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512, referred to Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, referred to Hunt v Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380 at 386, followed C K Comans, "Retrospective Commonwealth Regulations" (1953) 27 Australian Law Journal 231 F Bennion, Statutory Interpretation (3rd edn, 1997) at 685