Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014

FEDERAL COURT OF AUSTRALIA

Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014

ADMINISTRATIVE LAW – IMMIGRATION LAW – grant of visa – Public Interest Criteria in Item 4005 of Schedule 4 to Migration Regulations – whether health criteria satisfied – provision of opinion by Medical Officer to the Migration Review Tribunal – Minister required by sub-reg 2.25A(3) to take opinion to be "correct" in deciding whether person satisfies the criteria – whether Medical Officer's opinion vitiated by legal error – whether Tribunal erred in taking such opinion to be correct. Migration Act 1958 (Cth) ss 29, 31, 60, 65, 476 Migration Regulations 1994 reg 2.25A(3), Schedule 4 Item 4005(c) Minister for Immigration and Multicultural Affairs v Seligman [1999] 85 FCR 115 applied DAVID THOMAS BLAIR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 196 of 2001 CARR J 31 JULY 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 196 OF 2001

BETWEEN: DAVID THOMAS BLAIR

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 31 JULY 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 196 OF 2001

BETWEEN: DAVID THOMAS BLAIR

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE: 31 JULY 2001

PLACE: PERTH

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an application brought pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Migration Review Tribunal, made on 26 April 2001, refusing an application by the applicant's sister for a Former Resident (Migrant) (Class AR) visa lodged by her on 24 March 1998. The primary visa applicant, Mrs Hilary Lorna Courey (whom I shall call "the visa applicant"), a national of the United Kingdom, migrated at the age of seven with her family to Australia in 1956. On 18 June 1966 the visa applicant married Mr Donald Ernest Irving in South Australia. In February 1970 the visa applicant and her husband left Australia for Canada. There they had two children who were born in 1978 and 1980. 2 Mr Irving died in a Canadian hospital in 1985. The visa applicant then wanted to return to Australia where she had (and still has) an extensive family of siblings (fourteen brothers and sisters). Her young children did not wish to leave Canada, so the applicant, on professional advice, deferred the planned return to Australia. On 29 August 1987 the visa applicant married Mr David James Courey in Ontario, Canada. On 15 January 1989 their son, Michael James Courey was born in Canada. 3 The visa application was made on behalf of the visa applicant, her husband, the daughter of her first marriage and Michael Courey. The visa applicant has satisfied what are known as the "primary criteria" for the visa. The issue for determination by the respondent's delegate, and subsequently by the Tribunal, was whether the relevant secondary criteria were satisfied so far as Michael Courey was concerned. It is common ground that Michael Courey has Down's Syndrome with a mild intellectual disability.