Nand, Satya v Minister for Immigration & Ethnic Affairs [1996] FCA 1057

Federal Court of Australia

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CATCHWORDS IMMIGRATION - health criteria - whether Tribunal should require person to undergo assessment - relevance of earlier report that person did not satisfy criteria. Migration Regulations 1989 - Items 6 and 9 in Schedule 1 Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 Fletcher v Commissioner of Taxation (1988) 19 FCR 442 Kidner v Department of Social Security (1993) 18 AAR 545 No. NG 44 of 1996 SATYA NAND v MINSTER FOR IMMIGRATION AND ETHNIC AFFAIRS

MOORE J SYDNEY 27 NOVEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 44 of 1996 ) GENERAL DIVISION ) BETWEEN: SATYA NAND Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE: Moore J PLACE: Sydney DATE: 27 November 1996 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 44 of 1996 ) GENERAL DIVISION ) BETWEEN: SATYA NAND Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE: Moore J PLACE: Sydney DATE: 27 November 1996 REASONS FOR JUDGMENT This is an application under s 476 of the Migration Act 1958 ("the Act") for the review of a decision of the Immigration Review Tribunal ("the Tribunal") of 8 January 1996. The applicants in these proceedings are Satya Nand and his wife, Nirmala Nand. The review is sought on the basis that the Tribunal's decision involved an error of law: see s376 (1)(e) of the Act. The application raises a narrow legal issue. The relevant facts are not contentious and the following narrative is drawn from the reasons for decision of the Tribunal. Satya Nand, Nirmala Nand and their three children arrived in Australia on 23 September 1989. On 24 May 1991, Satya Nand applied for both an extended eligibility (economic) entry permit and also a skilled occupation entry permit. As part of the process of considering these applications, Nirmala Nand was examined by a Commonwealth Medical Officer who expressed the opinion that she did not meet prescribed health criteria. That opinion was based on an assessment that she was suffering from a kidney condition which, during the proposed period of stay in Australia, would require significant care or significant treatment (or both), would require care or treatment (or both) involving the use of community resources in short supply and would prevent her from pursuing her intended occupation in Australia. On 28 February 1994 a delegate of the Minister for Immigration and Ethnic Affairs refused to grant an entry permit to Satya Nand. The terms in which that decision was made are not in evidence. On 29 March 1994 Satya Nand applied for an internal review of that decision by the Immigration Internal Review Office. On 31 August 1994 a review officer affirmed the decision under review. An application for further review by the Tribunal was made on 14 September 1994 which led to the decision of 8 January 1996 to which these proceedings relate. To identify the legal issue in these proceedings it is convenient first to refer to provisions in Schedule 1 of the Migration Regulations 1989 ("the Regulations"). Items 6 and 9 in the schedule provide:

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MOORE J SYDNEY 27 NOVEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 44 of 1996 ) GENERAL DIVISION ) BETWEEN: SATYA NAND Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE: Moore J PLACE: Sydney DATE: 27 November 1996 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 44 of 1996 ) GENERAL DIVISION ) BETWEEN: SATYA NAND Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE: Moore J PLACE: Sydney DATE: 27 November 1996 REASONS FOR JUDGMENT This is an application under s 476 of the Migration Act 1958 ("the Act") for the review of a decision of the Immigration Review Tribunal ("the Tribunal") of 8 January 1996. The applicants in these proceedings are Satya Nand and his wife, Nirmala Nand. The review is sought on the basis that the Tribunal's decision involved an error of law: see s376 (1)(e) of the Act. The application raises a narrow legal issue. The relevant facts are not contentious and the following narrative is drawn from the reasons for decision of the Tribunal. Satya Nand, Nirmala Nand and their three children arrived in Australia on 23 September 1989. On 24 May 1991, Satya Nand applied for both an extended eligibility (economic) entry permit and also a skilled occupation entry permit. As part of the process of considering these applications, Nirmala Nand was examined by a Commonwealth Medical Officer who expressed the opinion that she did not meet prescribed health criteria. That opinion was based on an assessment that she was suffering from a kidney condition which, during the proposed period of stay in Australia, would require significant care or significant treatment (or both), would require care or treatment (or both) involving the use of community resources in short supply and would prevent her from pursuing her intended occupation in Australia. On 28 February 1994 a delegate of the Minister for Immigration and Ethnic Affairs refused to grant an entry permit to Satya Nand. The terms in which that decision was made are not in evidence. On 29 March 1994 Satya Nand applied for an internal review of that decision by the Immigration Internal Review Office. On 31 August 1994 a review officer affirmed the decision under review. An application for further review by the Tribunal was made on 14 September 1994 which led to the decision of 8 January 1996 to which these proceedings relate. To identify the legal issue in these proceedings it is convenient first to refer to provisions in Schedule 1 of the Migration Regulations 1989 ("the Regulations"). Items 6 and 9 in the schedule provide:

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