A recent case decided in the Federal Court could have huge implications for families looking to settle in Australia, if they have a family member with slight disabilities.
Freehills ’ Perth office acted for a family that included a young child with Down’s Syndrome in the migration test case, and achieved a successful outcome in the Federal Court this month. The case has run for several years with Freehills acting on a pro bono basis.
It related to the Department of Immigration’s policy that any family that includes a person with Down’s Syndrome would not be granted permanent residency, irrespective of the severity of the condition. Freehill’s Perth legal team first challenged the approach before the Migration Review Tribunal, but the appeal was rejected.
“Our argument was that the regulations required the Department of Immigration to consider the question of whether or not the relevant regulations are met on a case-by-case basis, having particular regard to the exact extent of the person’s disease or condition,” Freehills partner Steven Penglis said.
“We contended it was wrong at law to simply hold that persons who have Down’s Syndrome — or any other disease or condition for that matter — do not satisfy the regulations, irrespective of how mild that condition may be in the particular person.”
Penglis said the matter progressed as a test case with support from various avenues, before being taken to the Federal Court. Freehills applied for ministerial intervention, and the office of the Minister for Immigration and Multicultural and Indigenous Affairs, Amanda Vanstone, had said she would consider the application once the Federal Court had delivered its reasons.
“The Court’s reasons have ramifications extending well beyond the particular applicant and will hopefully give families seeking to settle in Australia with a family member suffering from mild Down’s Syndrome, or a mild form of some other condition, a greater chance of succeeding in their endeavour.”
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