High Court of Australia
HIGH COURT OF AUSTRALIA
McHUGH J
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.
1. 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
1. 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. 2. 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". 3. 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:
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