Minister for Immigration & Multicultural Affairs v Ma, Sharon [1998] FCA 285

FEDERAL COURT OF AUSTRALIA

MIGRATION - visa application - health criterion to be satisfied by member of visa applicant's family unit - requirement to undergo assessment in relation to that criterion - whether such a requirement may be dispensed with after assessment actually undergone. Migration Regulations, Sched 2, cl 103.227. Nand v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 52 followed. Minister for Immigration and Multicultural Affairs v Sharon Ma Whitlam J 31 March 1998 Sydney (Heard at Melbourne)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 450 of 1997

BETWEEN: minister for immigration and

MULTICULTURAL affairs

Applicant

AND: sharon ma

Respondent

JUDGE: WHITLAM J

DATE OF ORDER: 31 march 1998

WHERE MADE: SYDNEY (Heard at Melbourne)

THE COURT ORDERS THAT: 1. The decision of the Immigration Review Tribunal made on 14 July 1997 is set aside. 2. The refusal to grant visas to Khoo Aik Seng and Low Ah Hoon is referred to the Immigration Review Tribunal for further consideration. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 450 of 1997

BETWEEN: minister for immigration and

MULTICULTURAL affairs

Applicant

AND: sharon ma

Respondent

JUDGE: WHITLAM J

DATE: 31 march 1998

PLACE: SYDNEY (Heard at Melbourne)

REASONS FOR JUDGMENT This is an application by the Minister under s 476 of the Migration Act 1958 ("the Act") to review a decision of the Immigration Review Tribunal ("the Tribunal") made on 14 July 1997 remitting two applications for Parent (Migrant) (Class AX) visas for reconsideration in accordance with a direction that the applicants must be taken to have satisfied certain criteria for the visas. The essential background to the Tribunal's decision may be briefly outlined. Khoo Aik Seng, his wife Low Ah Hoon and their dependent daughter Dorothy Khoo are citizens of Singapore. On 22 December 1994 they applied to migrate to Australia. They were sponsored by the respondent, and Mr Khoo was the main visa applicant. The criteria for a Class AX visa were set out in Part 103 of Schedule 2 to the Migration Regulations. Division 103.22 dealt with the criteria to be satisfied by Mr Khoo at the time of the decision whether to grant or to refuse to grant him such a visa. Clause 103.227 provided: "103.227 (1) Each member of the family unit of the applicant who is an applicant is a person who: (a) satisfies public interest criteria 4001 to 4006, 4009 and 4010; and (b) if he or she has previously been in Australia, satisfies: (i) in the case of an applicant who is an aged parent - special return criteria 5001, 5002, 5004, 5006 and 5008 to 5010; and (ii) in the case of an applicant other than an aged parent - special return criteria 5001, 5003, 5005 and 5007 to 5010. (2) Each member of the family unit of the applicant who is not an applicant is a person who: (a) satisfies public interest criteria 4001 to 4004; and (b) satisfies public interest criteria 4005 and 4006, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to those criteria." The expression "member of the family unit" was relevantly defined by reg. 1.12 of the Migration Regulations as follows: "1.12. (1) . . . a person is a member of the family unit of another person (in this subregulation called "the family head") if the person is: (a) a spouse of the family head; or (b) a dependent child of the family head or of a spouse of the family head; or (c) a dependent child of a dependent child of the family head or of a spouse of the family head; or (d) a relative of the family head or of a spouse of the family head who: (i) does not have a surviving spouse or any other relative (other than the family head) able to care for that relative in the relevant country; and (ii) is usually resident in the family head's household; and (iii) is dependent on the family head; or (e) a relative of the family head or of a spouse of the family head who: (i) has never married or is widowed, divorced or separated; and (ii) is usually resident in the family head's household; and (iii) is dependent on the family head." As a dependent child who was herself a visa applicant, Dorothy Khoo was covered by subclause 103.227(1). The public interest criteria referred to in clause 103.227 are set out in Schedule 4 to the Migration Regulations. This case is concerned with clause 4005 of that Schedule, which provided: