Massy v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MASSY v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 63

MIGRATION – Judicial review of decision of delegate of the Minister not to waive condition 8503 of Medical Treatment (Visitor) visa – whether misinterpretation of legislation – whether irrelevant matter taken into account – whether jurisdictional error – application allowed.

Migration Regulations 1994, reg.2.05

Auva’a, in the matter of an application for a Writ of Prohibition and Certiorari and Declaratory and Injunctive Relief against Vanstone [2003] FCA 1506
Naidu v Minister for Immigration & Multicultural Affairs [2000] FCA 951
Schaap v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 65
Terera v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1570
SZGBR v Minister for Immigration [2005] FMCA 82
Rashid v Minister for Immigration & Citizenship [2007] FCAFC 25
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
VBAP v Minister for Immigration [2005] FCA 965

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

Applicant: SUSHIL MASSY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 948 of 2007

Judgment of: McInnis FM

Hearing date: 18 December 2007

Date of last submission: 16 January 2008

Delivered at: Melbourne

Delivered on: 24 January 2008

REPRESENTATION

Counsel for the Applicant: Mr G Hughan

Solicitors for the Applicant: Erskine Rodan & Associates

Counsel for the Respondent: Ms E Latif

Solicitors for the Respondent: Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the Respondent, quashing the decision of the Respondent dated 13 June 2007.

2. A writ of mandamus issue directed to the Respondent, requiring the Respondent to determine according to law the application for review.

3. The Respondent pay the Applicant’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG948 of 2007

SUSHIL MASSY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this application the Applicant seeks judicial review of a decision of a delegate of the Minister not to waive the condition 8503 imposed on the Applicant’s medical treatment (long stay) visa.

2. The delegate’s decision was made on 13 June 2007.

3. For convenience, I accept that the legislative framework has been accurately referred to in the Applicant’s contentions of fact and law, which I note appear to be consistent with the background set out by the delegate in his decision dated 13 June 2007.  The framework appears in the following paragraphs from the Applicant’s contentions:

   “22.Section 41 of the Migration Act 1958 permits the Minister to impose conditions on visas granted under the Act including, pursuant to sub-section 41(2)(a): ‘a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia.’

   23.The Migration Regulations 1994 provide for the types of conditions…