Hassan v MIMA & Anor

[2007] HCATrans 221

[2007] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S318 of 2006

B e t w e e n -

MOHAMMED HASSAN

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 23 MAY 2007 AT 9.18 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a national of Fiji.  He and his wife (who has the same nationality) visited Australia in September 1995 on tourist short stay visas.  They visited Australia again on later occasions and subsequently applied for an Other Family (Residence) (Class BU) visa under SubClass 835 (Remaining Relative).  Their application for that visa was refused by a delegate of the Minister on the basis that they failed to meet the prescribed criteria.  The foundation for that decision was the existence of "overseas near relatives" in the Fiji Islands, namely family of the applicant wife. 

The applicant and his wife applied to the Migration Review Tribunal ("the Tribunal") for review of the delegate's decision.  The Tribunal raised specific questions concerning the applicant's wife's mother.  In response, the applicant husband produced an apparently official certificate purporting to show that the applicant's wife's mother had died.  The Tribunal made enquiries concerning the death certificate.  The Australian High Commission in Fiji advised that the death certificate had been falsified.

The Tribunal wrote to the applicants seeking comment on this information concerning the death certificate and also evidence to the effect that the allegedly dead mother‑in‑law had five children whose names were listed, inferentially still resident in Fiji.  The applicants' responses were unsatisfactory and the Tribunal affirmed the decision under review.

There followed applications to the Federal Magistrates Court (Scarlett FM) seeking judicial review and, when this was refused, to the Federal Court of Australia (Lander J) on appeal. The appeal was dismissed. Lander J concluded that there was evidence before the Tribunal to sustain its decision and that there was no breach of procedural fairness or of s 359A of the Migration Act 1958 (Cth) to warrant the grant of judicial review.

We have considered the submissions made to this Court by the applicant husband who has been the moving party in the judicial review proceedings.  There is no error in the conclusion of the Federal Court; nor is there any prospect of success were special leave granted to appeal to this Court.  The application for special leave is dismissed.

Because the applicant is unrepresented, the application has been dealt with in accordance with Rule 41.10 of the High Court Rules.  Pursuant to Rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.  I publish that disposition signed by Justice Callinan and myself.

AT 9.21 AM THE MATTER WAS CONCLUDED