Triandafillidou v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRIANDAFILLIDOU v MINISTER FOR IMMIGRATION [2004] FMCA 20

MIGRATION – Application for review of a decision of the Migration Review Tribunal refusing to grant a Special Eligibility (Residence) (Class AO) visa, subclass 806 Remaining Relative – whether the Tribunal erred when it relied upon the construction of the medical officer's ‘subjective assessment’ – whether changes to the Migration Regulations changed meaning – whether invalid because no account of capacity of applicant’s family to pay medical expenses – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.359A, 379A, 379(C)(4), 474(2), 505
Migration Regulations 1994, Regs 1.15, 1.6AA, 2.25A, 2.25A(1), 2.25A(3), 2.25B, 2.25B(a), 2.25B(b), 806.223

Minister for Immigration and Multicultural Affairs v Seligman (1999) FCA 117
Imad v Minister for Immigration and Multicultural Affairs (2001) FCA 1011
Blair v Minister for Immigration and Multicultural Affairs (2001) FCA 1014
Inguanti v Minister for Immigration and Multicultural Affairs (2001) FCA 1046

Applicant: SOTIRIA TRIANDAFILLIDOU

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 471 of 2003

Delivered on: 6 February 2004

Delivered at: Melbourne

Hearing Dates: 12 & 15 January 2004

Judgment of: Bryant CFM

REPRESENTATION

Counsel for the Applicant: Mr Hamilton

Solicitors for the Applicant: Koenig & Simons Solicitors

Counsel for the Respondent: Ms Moore

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the Application be dismissed.

2. THAT the Applicant pay the Respondent's costs fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 471 of 2003

SOTIRIA TRIANDAFILLIDOU

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision of the Migration Review Tribunal made in 3 April 2003 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to grant a Special Eligibility (Residence) (Class AO) visa, subclass 806 Remaining Relative.  The delegate’s original decision was made on 24 August 2001.

2. The applicant’s application is regulated under the Migration Act 1958 (Cth) (“the Act”) and the Migration Regulations 1994.  In particular, the following fall within the parameters of the applicant’s application:

   a)The definition of remaining relative contained in Regulation 1.15;

   b)Part 806 of Schedule 2 of the Migration Regulations;

   c)Criterion 4005 (Public Interest/Health) of Schedule 4;

   d)Regulation 2.25A (Referral to Medical Officers of the Commonwealth);

   e)Sections 359A and 379A of the Act.

Background

1. The applicant is the sister and a remaining relative of the nominator Dimitrios (Jim) Triandafillidou who is an Australian citizen. 

2. It is not contested that the applicant suffers from a significant intellectual impairment and requires support and supervision.

3. It is a requirement of subclass 806 that Regulation 806.223 be satisfied, that is, that the applicant satisfies (inter alia) public interest criterion 4005.

4. The criterion requires that an applicant is not a person of whom:

   (ii) provision of the health care or community services relating to the condition would be likely to –

   (A)   result in a significant cost to…