Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 81 (6 May 2003)

Last Updated: 9 May 2003

FEDERAL COURT OF AUSTRALIA

Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 81

CORRIGENDUM

GUI RONG WU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1143 OF 2002

MOORE, EMMETT & BENNETT JJ

SYDNEY

6 MAY 2003 (CORRIGENDUM 9 MAY 2003)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1143 OF 2002

BETWEEN:	GUI RONG WU APPELLANT
AND:	MINISTER FOR IMMIGRATION & INDIGENOUS & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MOORE, EMMETT & BENNETT JJ
DATE OF ORDER:	6 MAY 2003
WHERE MADE:	SYDNEY

CORRIGENDUM

1. On page 1 of the Reasons for Judgment, in paragraph 1 in the first line of text, delete "Mr" and insert "Ms".

I certify that the preceding one (1) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justices Moore, Emmett & Bennett JJ.

Associate:

Dated: 9 May 2003

FEDERAL COURT OF AUSTRALIA

Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 81

GUI RONG WU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1143 OF 2002

MOORE, EMMETT & BENNETT JJ

SYDNEY

6 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1143 OF 2002

BETWEEN:	GUI RONG WU APPELLANT
AND:	MINISTER FOR IMMIGRATION & INDIGENOUS & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	MOORE, EMMETT & BENNETT JJ
DATE OF ORDER:	6 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS BY CONSENT THAT:

1. The appeal be allowed.

2. The orders made by the trial Judge be set aside.

3. A writ of certiorari issue to quash the decision of the Migration Review Tribunal dated 4 March 2002.

4. A writ of mandamus issue requiring the Migration Review Tribunal to determine the application according to law.

5. The respondent pay the appellant's costs of the proceeding in the Court below and the appeal as agreed, totalling $12,391.50.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1143 OF 2002

BETWEEN:	GUI RONG WU APPELLANT
AND:	MINISTER FOR IMMIGRATION & INDIGENOUS & MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	MOORE, EMMETT & BENNETT JJ
DATE:	6 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal by Mr Gui Rong Wu ("the appellant") from a judgment of Sackville J of 10 October 2002 dismissing an application under s 39B(1) of the Judiciary Act 1903 (Cth) seeking writs of mandamus, prohibition and certiorari in respect of the decision of the Migration Review Tribunal of 4 March 2002. The Tribunal affirmed the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister") that the appellant was not entitled to a Change of Circumstances (Residence) class AG (sub-class 806-Family) visa. While Sackville J determined that the Tribunal had erred in several respects, including denying the appellant procedural fairness, the appellant was unsuccessful because of the operation of s 474 of the Migration Act 1958 (Cth). This conclusion was reached because his Honour was bound to give effect to the judgment of the Full Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 concerning the reach of s 474.

2 Since his Honour gave judgment the High Court has determined the meaning and effect of s 474 (at least for present purposes) in Plaintiff S517 v the Commonwealth [2003] HCA 2. It would appear that as a result of considering the judgment of Sackville J and the judgment of the High Court, the parties have reached agreement that the appellant should succeed. The basis upon which this agreement has been reached was summarised in a letter from the Minister's solicitor of 2 May 2003 which provides, in material respects:

We enclose consent orders signed on behalf of the parties allowing the appeal with costs.

The parties consent to the appeal being allowed on the following basis:

1. The learned trial judge was correct in finding there was a denial of natural justice.

2. That denial of natural justice amounted to a jurisdictional error such that the decision of the Migration Review Tribunal ("the Tribunal") was not protected by section 474 of the Migration Act 1958 ("the Act").

3. Given the decision in Plaintiff S157 v Commonwealth [2003] HCA 2, the learned trial judge erred in holding that the Tribunal's decision, in so far as it was affected by the error referred to in paragraph 2 above, was protected by section 474 of the Act.

4. The Tribunal erred in its application of the definition of "special need relative" in regulation 1.03 of the Migration Regulations 1994 by "requiring the applicant to show serious circumstances in addition to establishing that the need for assistance is comparable to that of disabled or chronically ill persons" (paragraph 29 of his Honour's reasons for judgment).

The respondent does not concede that the error referred to in paragraph 4 above was a jurisdictional error.

3 Having regard to Sackville J's reasons and the reasons of the High Court in Plaintiff S517 v the Commonwealth (supra), the concession of the Minister that there was jurisdictional error justifying relief in the appellant's favour is correct. Accordingly we propose to make orders allowing the appeal and issuing writs of certiorari and mandamus.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Emmett & Bennett JJ.

Associate:

Dated: 6 May 2003

Counsel for the Applicant:	Mr T Reilly
Solicitor for the Applicant:	Christopher Levingston & Associates
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Judgment:	6 May 2003