Re Ruddock & Ors; Ex parte Reyes [2000] HCA 66

HIGH COURT OF AUSTRALIA

McHUGH J

Ex Tempore

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.

1. 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. 2. 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. 3. 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 for a class 816 special permanent entry permit in accordance with law. 4. In support of the application for orders nisi the applicant, Alicia Reyes, has filed an affidavit dated today, 27 September 2000. In her affidavit, she recites that she arrived in Australia with her husband from the Philippines in 1988 and that from 1988 until 1991 they were in hiding in Australia. She states that, in May or June 1994, she applied to the Department of Immigration and Multicultural Affairs for a class 816 special permanent entry permit or a class 818 highly qualified on-shore permanent entry permit. 5. In January 1996, the application was refused by a delegate of the Minister. In May 1996, the decision of the delegate was affirmed by the Migration Internal Review Office. In June 1996, the applicant applied to the Immigration Review Tribunal for review of the decision, but on 23 February 1998 the Tribunal affirmed the decision of the delegate not to grant her or her husband a class 816 or class 818 entry permit. 6. The reasons of the Tribunal show that the applicant failed to meet the criteria for a class 816 or a class 818 entry permit. Apparently there was no evidence which could arguably support the application for a class 818 permit, and the application turned on whether or not the applicant could make out a case for a class 816 entry permit. To do so, it was necessary for her to establish seven criteria, five of which had to be met at the time of the application and two of which had to be determined as at the date of the decision. 7. In its reasons, the Tribunal drew attention to the fact that neither the applicant nor a related person had the relevant academic qualifications, nor had they completed academic work or had qualifications sufficient to meet the Australian standard for the criteria in cl 816.721(2)(a). The Tribunal expressly said that this part of the matter was uncontested. The Tribunal went on to say that the issue became whether or not the occupation of the applicant's husband was sufficient to come within the criteria in cl 816.721(2)(b). In that respect the applicant's claim to meet the criteria was a derivative one based on her husband's qualification. 8. To deal with that qualification the Tribunal had to be satisfied that the husband: