Can, Lu v Martin Robyn & Anor [1995] FCA 708

Can, Lu v Martin Robyn & Anor [1995] FCA 708

The application was struck out because each ground of review was clearly untenable and could not possibly succeed. The Martin letter disclosed the delegate's decision; there was material justifying the findings about the daughter's health, potential medical costs and eligibility for a blind pension; there was no evidence that the delegate acted at the direction of DCSH or ignored financial material; and the delegate permissibly considered the health policy while also considering whether the applicant's circumstances justified departure from it, rather than treating the policy as binding.

Jurisdiction
Australia
Judgment Date
05 September 1995
Procedural Posture
Application to Review Migration Refusal Decision / Respondents' Motion Under Order 20 R.2 of the Federal Court Rules to Dismiss or Strike Out the Proceeding as Disclosing No Reasonable Cause of Action
Outcome
Application struck out as disclosing no reasonable cause of action.
Legal Topics
['no Reasonable Cause of Action' 'summary Dismissal' 'judicial Review of Migration Decision' 'government Policy in Discretionary Decision Making' 'health Requirements for Migration Visas']
['practice and Procedure' 'administrative Law' 'migration Law'] ['no Reasonable Cause of Action' 'summary Dismissal' 'judicial Review of Migration Decision' 'government Policy in Discretionary Decision Making' 'health Requirements for Migration Visas']

Case Brief

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Procedural Posture

Application to Review Migration Refusal Decision / Respondents' Motion Under Order 20 R.2 of the Federal Court Rules to Dismiss or Strike Out the Proceeding as Disclosing No Reasonable Cause of Action

Legal Issues

  1. 1 ['Whether the application disclosed a reasonable cause of action or any real question to be determined.' "Whether the delegate's decision was disclosed in documentary form and whether the identity of the delegate was sufficiently disclosed." "Whether the delegate's decision was so unreasonable that no reasonable person could have made it." "Whether relevant considerations, including the financial circumstances of the applicant's family, were not taken into account." 'Whether the decision was made at the direction of the Department of Community Services and Health.' "Whether the delegate improperly applied a health policy without considering whether it was appropriate to apply it to the applicant's circumstances." 'Whether the delegate failed to undertake a full reconsideration under reg.173A of the Migration Regulations 1989.' 'Whether consideration of special treatment or special circumstances was an irrelevant consideration.']

Ratio Decidendi

The application was struck out because each ground of review was clearly untenable and could not possibly succeed. The Martin letter disclosed the delegate's decision; there was material justifying the findings about the daughter's health, potential medical costs and eligibility for a blind pension; there was no evidence that the delegate acted at the direction of DCSH or ignored financial material; and the delegate permissibly considered the health policy while also considering whether the applicant's circumstances justified departure from it, rather than treating the policy as binding.

Court Disposition

Application struck out as disclosing no reasonable cause of action.

Orders

  • ['The Application be struck out as disclosing no reasonable cause of action.' "The applicant pay the respondents' costs of the Motion."]