Bui v MIMA

FEDERAL COURT OF AUSTRALIA

Bui v Minister for Immigration & Multicultural Affairs [1999] FCA 118

ADMINISTRATIVE LAW – immigration law – grant of visa – Public Interest Criteria in Item 4007 Schedule 4 – whether borderline intellectual functioning amounts to “significant cost to the Australian community in the areas of health care or community service” – whether Medical Officer of the Commonwealth erred in expressing an opinion on the question of waiver – whether ministerial consideration of waiver power was unduly restricted – invalidity of reg 2.25B requiring the Medical Officer to consider applicant’s “need and eligibility for health care or community services”.

Migration Act 1958 (Cth), ss 65 and 505

Migration Regulations, regs 2.25A, 2.25B and Sch 4 item 4007

Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117 applied
Seligman v Minister for Immigration and Multicultural Affairs [1998] FCA 346 not followed

TAM ANH BUI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

VG 584 of 1997

FRENCH, NORTH AND MERKEL JJ
1 MARCH 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	VG 584 OF 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	TAM ANH BUI Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:	FRENCH, NORTH AND MERKEL JJ
DATE OF ORDER:	1 MARCH 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The order made by the learned trial judge on 12 March 1998 dismissing the application with costs be set aside.

3.The respondent’s decision of 23 September 1997 refusing the grant of a Special Assistance Visa be set aside.

4.The matter be remitted to the respondent for reconsideration according to law on the basis that Regulation 2.25B is invalid.

5.There be no order for the costs of the appeal.

6.The respondent pay the appellant’s costs of the application other than the hearing before the primary Judge.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY	VG 584 OF 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	TAM ANH BUI Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FRENCH, NORTH AND MERKEL JJ
DATE:	1 MARCH 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. Tam Anh Bui is a young Vietnamese man who is said to have borderline intellectual functioning.  He has nevertheless completed nine years of primary and secondary education in Vietnam and lives an independent life in that country.  He is generally in good health.  Mr Bui’s grandfather, three uncles and two aunts, all but one of whom are Australian citizens, live in Western Australia.

2. He has applied, with their support, for a visa to travel to and reside in Australia.  That application has been refused by a delegate of the Minister for Immigration and Multicultural Affairs because, in the opinion of a Medical Officer of the Commonwealth, his stay in this country is likely to…