Fox v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FOX v MINISTER FOR IMMIGRATION [2004] FMCA 283

MIGRATION – Special needs relative visa – whether Tribunal should have made further inquiries about medical evidence – whether breach of natural justice in failing to make further inquiries about medical evidence – whether Tribunal failed to aggregate medical factors – whether the Tribunal failed to consider material evidence about special circumstances.

Migration Regulations 1994, r.1.03,

Migration Act 1958

Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24
NACC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 333
Su v Minister for Immigration and Multicultural Affairs [2001] FCA 1409
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
McAuliffe v Secretary of Department of Social Security (1992) 28 ALD 609
Avesta v Minister for Immigration and Multicultural Affairs [2002] FCAFC 121

Applicant: MARIAN GWENDOLYN FOX

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 715 of 2002

Delivered on: 13 May 2004

Delivered at: Melbourne

Hearing date: 12 February 2003

Judgment of: Phipps FM

REPRESENTATION

Counsel for the Applicant: Mr Porceddu

Solicitors for the Applicant: Armstrong Ross

Counsel for the Respondent: Mr Fairfield

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent’s costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 715 of 2002

MARIAN GWENDOLYN FOX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant, a female citizen of India, arrived in Australia on 25 July 1998 on a Short Stay (Visitor) (Class TR) subclass 674 visa.  On

   
   

   22 October 1998 she applied for permanent residency by applying for a subclass 806 visa.  The application was made on the basis that she is the special need relative of her mother, Pearl Louisa Fox ("the nominator").  The nominator entered Australia on 27 December 1983 as the holder of a Working Age Parent Class K 1221 visa and was permanent upon arrival.  She became an Australian citizen on

   
   

   1 September 1986.

2. On 15 August 2001, a delegate of the respondent refused to grant the visa.  On 12 September 2001 the applicant applied for review of that decision to the Migration Review Tribunal (“the Tribunal”).  By decision dated 22 June 2002 the Tribunal affirmed the primary decision.  The applicant seeks relief by way of prerogative writ against the Tribunal’s decision.

3. The issue to be determined by the Tribunal was whether the nominator was a "special need relative" as defined in r.1.03 of the Migration Regulations 1994.  That definition is:

   `special need relative' in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand…