Robinson v MIMIA

Case [2005] FCA 1626

FEDERAL COURT OF AUSTRALIA

Robinson v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1626

ADDENDUM

TRACEY ANN ROBINSON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL
WAD 293 OF 2004

SIOPIS J
10 NOVEMBER 2005 (ADDENDUM 18 NOVEMBER 2005)
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 293 OF 2004

BETWEEN:

TRACEY ANN ROBINSON
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

SIOPIS J

DATE OF ORDER:

10 NOVEMBER 2005

WHERE MADE:

PERTH

ADDENDUM

1.Page 19, par 56, add to the end of the second sentence, after the word ‘abstract’, the following:

‘, in relation to an application for a permanent residency visa.’

I certify that the preceding one (1) numbered paragraph is a true copy of the Addendum to the Reasons for Judgment of the Honourable Justice Siopis.

Associate:

Dated:            18 November 2005

FEDERAL COURT OF AUSTRALIA

Robinson v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1626

MIGRATION – visa application – Public Interest Criterion 4005 in Schedule 4 of the Migration Regulations 1994 (Cth) – whether health criteria satisfied – provision of opinion by Medical Officer of the Commonwealth to the Migration Review Tribunal – Minister required by reg 2.25A(3) to take opinion to be ‘correct’ in deciding whether person satisfies the criteria – whether Migration Review Tribunal erred in taking opinion to be correct – application allowed

Migration Act 1958 (Cth), ss 29, 31, 31(3), 60, 65

Migration Regulations 1994 (Cth), reg 2.25A, reg 2.25A(3), Sched 2 Item 855.225, Sched 4 Public Interest Criterions 4005, 4005(a), 4005(c)

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, [2005] HCA 24 applied
Weinberg, Ferrez [1999] MRTA 731 cited
Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 followed
X v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 429 not followed
Imad v Minister for Immigration and Multicultural Affairs [2001] FCA 1011 cited
Inguanti v Minister for Immigration and Multicultural Affairs [2001] FCA 1046 cited
Blair v Minister for Immigration and Multicultural Affairs [2001] FCA 1014 cited
Re Refugee Tribunal; Ex parte Aala (2004) 204 CLR 82 applied
Stead v State Government Insurance Commission (1986) 161 CLR 141 cited
Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 applied
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 applied

TRACEY ANN ROBINSON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and MIGRATION REVIEW TRIBUNAL
WAD 293 OF 2004

SIOPIS J
10 NOVEMBER 2005
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 293 OF 2004

BETWEEN:

TRACEY ANN ROBINSON
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

SIOPIS J

DATE OF ORDER:

10 NOVEMBER 2005

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The Migration Review Tribunal be joined as the second…

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Robinson v MIMIA [2005] FCA 1626
Case
[2005] FCA 1626
Decision Date

CaseChat Overview and Summary

The case of Robinson v MIMIA involves a dispute over the refusal of a visa on health grounds. David Robinson, an applicant with Down syndrome, sought a visa under the Labour Agreement (Residence) (Class BV) Visa, Subclass 855. The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) refused the visa based on the applicant's health, citing the potential for significant costs to the Australian community in health care and community services. The Tribunal sought a further medical opinion from a Medical Officer of the Commonwealth (RMOC) which concluded that the applicant's condition would likely result in significant costs to the Australian community.

The central legal issue before the court was whether the Tribunal's decision to refuse the visa based on health grounds was lawful and whether it was justified to deny the visa under Public Interest Criterion 4005(c) of the Migration Regulations. Specifically, the court had to determine whether the Tribunal had correctly interpreted the regulation and whether it had acted within its jurisdiction in making the decision. The applicant argued that the Tribunal had failed to properly consider the evidence presented and had misapplied the relevant criteria.

The court found that the Tribunal had not fully considered the medical evidence and had misapplied the regulation in its decision. The Tribunal had relied on a blanket assumption that individuals with Down syndrome would incur significant health care costs without adequately assessing the individual circumstances of the applicant. The court held that the Tribunal had acted beyond its jurisdiction and that its decision was therefore invalid. The court quashed the Tribunal's decision and ordered it to reconsider the application according to law.

The final orders of the court were to join the Migration Review Tribunal as the second respondent, to quash the Tribunal's decision dated 17 November 2004, to mandate the Tribunal to reconsider the application according to law, and to order the first respondent to pay the applicant’s costs of the application.

Orders

Orders of the court

1. The Migration Review Tribunal be joined as the second respondent.

2. An order in the nature of certiorari is granted quashing the decision of the second respondent dated 17 November 2004.

3. An order in the nature of mandamus is made requiring the second respondent to reconsider the applicant’s application according to law.

4. The first respondent is to pay the applicant’s costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SIOPIS J
Following the receipt of the letter from the applicant’s solicitors, the Tribunal wrote the following letter dated 2 August 2004 to the RMOC:‘Re: APPLICATION FOR REVIEW OF A DECISIONTO REFUSE A VISA ON HEALTH GROUNDSVisa Applicant: Master David ROBINSONDate of Birth: 21 September 1993Visa Class:Labour Agreement (Residence) (Class BV) Visa, Subclass 855 (Labour Agreement)Previous medical opinions:On 9 February 2004, Dr Clea Anagnostopolou, a Medical Officer of the Commonwealth (MOC) from the Health Assessment Service, expressed an opinion that the above visa applicant had not meet [sic] the health requirements of Public Interest Criteria 4005(c) contained in Schedule 4 of the Migration Regulations.Since then the Tribunal has received the following facsimile documents from the visa applicant’s migration agent, Mr Steven Penglis:·a submission dated 6 July 2004 from Mr Penglis;·an extract from a Tribunal decision in the case of Weinberg, Ferrez [1999] MRTA 731 (19 November 1999);·a medical report dated 1 October 2003 from Professor Fiona Stanley;·medical reports dated 11 April 2002 and 17 May 2003 from Dr Desiree Silva;·a letter dated 25 June 2002 from Ms Pam Coman, the Principal of the Joondalup Education Support Centre;·a medical report dated 18 February 2003 from Mr Nick Gottardo, Fellow in Paediatric Oncology/haematology; and·an article entitled Functional status of school‑aged children with Down syndrome [sic].Would you please provide a further medical opinion about whether or not you consider that the visa applicant satisfies Public Interest Criterion 4005 of Schedule 4 of the Migration Regulations 1994. In expressing your opinion, can you please identify which material that you considered in your assessment and any reasons why you disagree with this information (if applicable).Please quote our reference number when replying to this letter.An early reply would be appreciated.’ In a response to the Tribunal’s letter, a second RMOC provided a further medical report on David dated 5 August 2004. The letter read as follows:‘My opinion is based on available medical and radiological reports and the proposed duration of stay sought in Australia.I have assessed the applicant against the Regulation set out at Schedule 4 of the Migration Regulations:Regulation and Narrative4005(c)(ii)(A) – newthe applicant is not a person who has a disease or condition to which the following subparagraphs apply:(ii)provision of the health care or community services relating to the disease or condition would be likely to:(A)result in a significant cost to the Australian community in the areas of health care and community services;regardless of whether the health care or community services will actually be used in connection with the applicant;The applicant is a person intellectual impairment (sic) and speech disorder associated with Down‘s syndrome. He currently requires special eduction support and is likely to require further special education and allied therapies support in future. It is considered unlikely that he would be capable of open employment as an adult, and thus would be likely to be eligible for use of income and community support services.This disease or condition is a disease or condition to which paragraphs 4005(c)(ii)(A) ‑ new in Schedule 4 of the Migration Regulations 1994 apply, regardless of whether or not health care or community services will actually be used in connection with the applicant during the period of the applicant’s proposed stay in Australia. A person with such a disease or condition would be likely to require health care or community services or would be likely to meet the medical criteria for the provision of a community service and provision of such health care or community services relating to the disease or condition would be likely to result in a significant cost to the Australian community in the areas of health care and community services, or prejudice the access of Australian citizens or permanent residents to, health care and community services.Therefore the applicant does not meet Public Interest Criterion(s):4005Serial Code(s) and Narrative:99 Does not meet health requirement. Form 884 follows.MOC Comments 801NB. Case could be considered for referral for Ministerial intervention.’

Ratio Decidendi

Legal Principle Established

Established by: SIOPIS J

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