Hassan v MIMA & Anor

[2006] HCATrans 689

[2006] HCATrans 689

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M52 of 2006

B e t w e e n -

MOHAMMAD KAMRUL 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 THURSDAY, 14 DECEMBER 2006, AT 9.26 AM

Copyright in the High Court of Australia

KIRBY J:   The applicant is a national of Bangladesh.  He arrived in Australia in October 1999.  In July 2001 he married an Australian citizen, Ms Karishma Kumari.  He immediately applied for a spouse visa.  His spouse lodged a nomination form in support of his application.  A temporary visa was granted to the applicant in November 2001.  However, on 14 April 2004, Ms Kumari advised the Minister’s Department stating that she wished to withdraw her nomination of the applicant.  The applicant was invited to comment but he made no reply.  In October 2004, a delegate of the Minister refused to grant the applicant a permanent spousal visa. 

The applicant applied in November 2004 to the Migration Review Tribunal (“the Tribunal”) for review of the delegate’s decision.  At a hearing in May 2005, the applicant confirmed that his relationship with Ms Kumari had ceased.  In June 2005 the Tribunal affirmed the delegate’s decision finding that the applicant was not entitled to a spousal visa.

The applicant then applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  He relied on a number of grounds, including procedural unfairness, failure to consider material, failure to exercise discretion and failure to consider the applicable law.  He relied especially on the fact that his marriage relationship with Ms Kumari had lasted for longer than two years.  All of these grounds were rejected by Smith FM. 

An appeal was then taken to the Federal Court of Australia, constituted for this purpose by Kenny J.  The applicant repeated the grounds raised before the Federal Magistrate and emphasised that he was not responsible for the breakdown of his marriage, a point which he alleged the Tribunal had failed to consider. 

By reference to the Migration Regulations 2004 (Cth) (Reg 801.221) and s 63(1) of the Migration Act 1958 (Cth), Kenny J demonstrated that the withdrawal of sponsorship on the part of a sponsoring spouse, without more, removes the foundation for the permanent visa which the applicant had sought. No particular time is fixed for the determination of such a visa application. The delay that had occurred did not itself betoken an error calling for judicial intervention. Accordingly, the appeal was dismissed.

The applicant has now sought special leave to appeal to this Court.  He complains of denial of natural justice, jurisdictional error and failure to comply with s 424A(1) of the Act.  None of these complaints is tenable.  The decisions below are clearly correct in law.  There is no evidence of procedural unfairness or want of good faith on the part of the earlier decision‑maker.  The application for special leave to appeal to this Court must be dismissed.

Because the applicant is unrepresented, this application falls to be dealt with in accordance with Rule 41.10 of the High Court Rules 2004. 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 Callinan J and myself.

AT 9.29 AM THE MATTER WAS CONCLUDED