Ali, Mohammed Quasem v The Minister for Immigration and Multicultural Affairs

[1997] FCA 1247

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 400 of 1997

BETWEEN:	MOHAMMED QUASEM ALI APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		WHITLAM J
DATE OF ORDER:		30 OCTOBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 400 of 1997

BETWEEN:	MOHAMMED QUASEM ALI APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	30 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application to review a decision of the Immigration Review Tribunal.  The Tribunal affirmed a decision refusing to grant a visa to the applicant.  The Tribunal was not satisfied that the applicant met a prescribed criterion requiring him to be a "person who had not turned 45 before 1 November 1993".  Whether the applicant met that criterion was the only real issue before the Tribunal.  The applicant claimed he was born on 1 January 1949.  The Tribunal found that he was born on 1 January 1944. 

The applicant has the misfortune to be unrepresented by a lawyer. He has conducted his own case with the assistance of an interpreter of the Bengali language provided by the Court. I have no doubt that the applicant has no idea of the limited nature of the court's jurisdiction under Pt 8 of the Migration Act 1958. Fortunately the respondent has been represented by very experienced counsel who has lent over backwards to conduct his client's case extremely fairly.  In addition to tendering the decision of the Tribunal, the respondent tendered the departmental files that were before the Tribunal together with the Tribunal's own file.

The applicant plainly laboured under the misapprehension that the court would determine afresh the date of his birth.  The applicant has not framed his application in terms of the grounds specified in s 476(1) of the Act.  Nonetheless, it seems clear enough that the only possible ground available to him is that provided for in par (1)(g).

The evidence before the Tribunal referred to by the Tribunal in support of its finding that the applicant was born on 1 January 1944, appears in the Departmental files.  This included: the passport issued by the Government of the People's Republic of Bangladesh upon which the applicant came to Australia, showing the applicant's date of birth to be 1 January 1944; an application for refugee status lodged on 19 February 1990, giving the applicant's date of birth as 1 January 1944; a document entitled “Matriculation Examination” issued by the Board of Intermediate and Secondary Education in Dacca, and dated 24 August 1962, stating that the applicant’s date of birth "as recorded on his or her application" was 1 January 1944.

It was undisputed that the applicant had, until he became aware of the age criterion in question, represented his birth date as being 1 January 1944.  In its decision, the Tribunal refers to the material relied on by the applicant for a finding that his birth date was in fact       1 January 1949. However, the Tribunal, for the reasons that it gives in its decision, did not accept that an error had occurred when the applicant had earlier stated his birth date to be           1 January 1944. The Tribunal found that it was not satisfied the applicant had not turned 45 before 1 November 1993.  That was a matter for the Tribunal to decide.

The applicant tendered at the hearing today material some of which had not been before the Tribunal and parts of which merely replicated the material in the Departmental and Tribunal files already tendered by the respondent.  The tender of that material was rejected.  Whilst the applicant was not able to articulate the basis upon which such material might possibly be tendered in reliance upon the ground specified in s 476(1)(g), it is quite clear that the material could not be received under that ground because there was material before the Tribunal upon which it could base its decision: Szelagowicz v Stocker (1994) 35 ALD 16 per Davies and Einfeld JJ at 22 and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 per Black CJ at 221.

The application will accordingly be dismissed.  The applicant must pay the respondent's costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            30 October 1997

The applicant appeared in person.
Counsel for the respondent:	G T Johnson
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	30 October 1997
Date of judgment:	30 October 1997