Hassan v Minister for Immigration
[2006] FMCA 188
•30 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HASSAN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 188 |
| MIGRATION – Visa – Subclass 835 Other Family Remaining Relative Visa - Migration Review Tribunal – application for review of MRT decision affirming decision of a delegate of the Minister not to grant an Other Family (Residence) (class BU) visa – applicant a citizen of Fiji – where evidence that applicant’s wife’s mother is still resident in Fiji – evidence that death certificate is fraudulent – evidence that applicant’s wife’s mother has five other children. |
| Judiciary Act 1903 (Cth) s. 39B Migration Act 1958 (Cth), ss. 357A, 359A, 474 |
| Applicant: | MOHAMMED HASSAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3684 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 January 2006 |
| Date of Last Submission: | 30 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
That the Migration Review Tribunal be joined as a party to these proceedings.
That the Migration Review Tribunal be joined as Second Respondent.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,700.00 and I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3684 of 2004
| MOHAMMED HASSAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal that was made on 29th November 2004.
The Tribunal affirmed a decision of a delegate of the Minister, finding that the applicant and his wife were not entitled to the grant of Other Family (Residence) (Class BU) visas.
The applicant is a citizen of Fiji, as is his wife. They first arrived in Australia on 25th September 1995, on Tourist Short Stay visas. The applicant subsequently visited Australia on two other occasions in 1996, and then the applicant and his wife arrived in Australia again, in February 1997. They then departed in May 1997 and returned in August 2001. They were granted bridging visas when they applied for the visas which are the subject of this application.
The visa is an Other Family (Remaining Relative) visa. The application was refused on the basis that the applicant was not able to demonstrate that he had no overseas near relatives. He has siblings who live in Australia and are indeed Australian citizens. The applicant and his wife have a daughter, who was in Fiji at that time but still under their care.
The difficulty that arose was that the applicant's wife had not had any contact with her mother for many years. The applicant's wife had been abandoned by her mother when she was a baby, and the applicant told the department he believed that his wife's parents did have any other children, apart from his wife. The applicant attended a hearing of the Tribunal on 6th July 2004, and submitted a copy of a document which he believed was the death certificate of his wife's mother.
The Tribunal made inquiries about this document, and wrote to the applicant on 3rd August 2004, inviting his comment on certain information. The applicant had told the Tribunal, in a letter dated
15th April 2004:
"We are now positively led to believe that my wife's mother, Noor Begum, is deceased. Our inquiry has further revealed that there were no other issue borne either from Noor Begum or from Mohammed Naim), father of Nezroon Nisha"
i.e., the name of the applicant's wife.
The Tribunal had made inquiries with the Australian High Commission, who made their own inquiries from the Registrar General's office in Fiji. The Registrar General in Fiji advised the Australian High Commission that the death certificate that had been produced was false and tampered. The Registrar General's office said:
We have found that the manual-typed death certificate does not match any deaths records or even the corresponding registration number of 796/65 in our death system. Therefore, I hereby confirm that the death certificate of Noor Begum in your office is a false and tampered death document, of which all information contained therein must be disregarded with immediate effect.
We are currently conducting further investigation on the matter.
The letter from the Registrar General went on to confirm that the applicant's wife's mother and father had six children in all, two of whom were older than the applicant's wife, and three were younger.
The Tribunal wrote to the applicant on 3rd August 2004, informing the applicant of this information, under s. 359A of the Migration Act. The letter made it clear to the applicant the importance of the information. The letter said, at page 151 of the Court Book:
If this information is true, at the time of application, Mrs Nezroon Hassan, would have had six overseas near relatives living in Fiji, and therefore you would not meet the requirements of the definition of a remaining relative. In addition, by providing a fraudulent death certificate for Ms Noor Begum and failing to disclose Mrs Hassan's other siblings raises doubts about the applicant's credibility.
The Tribunal asked for the applicant's written comments within 28 calendar days, and advised the applicant that if the Tribunal did not receive any comments within that time, it could, under s.359C of the Act, make a decision on the review, without taking any further action.
The applicant wrote to the Tribunal on 6th September 2004, asking for an extension of time of 14 days. That extension was approved.
The applicant made a further reply on 13th October, in which he said that he and his wife had to rely on the information given to them by a third party, as they were in Australia and they had to get information from Fiji. He also said that:
Ms Noor Begum is quite a common name and I have personally experienced so many people who have had the same name and date of birth, even in Australia. Therefore I would ask the Tribunal to give a benefit of doubt."
The Tribunal considered this material but affirmed the decision of the delegate. At page 167 in its findings, the Tribunal referred to the death certificate of the applicant's wife's mother being a fraudulent document, and the evidence of the Australian High Commission, that the applicant's wife's mother has five other children. The Tribunal said that the Tribunal placed greater weight on the evidence provided by the Australian consular investigation than the rebuttal evidence of the review applicant received by the Tribunal on 13th October 2004.
The Tribunal found that the secondary visa applicant - i.e., the applicant's wife in these proceedings - was unable to meet the legislative definition of "remaining relative", as she has more than three overseas' near relatives at the time of application. The Tribunal found, at page 168 of the Court Book, that it had no alternative but to affirm the decisions under review.
The applicant, in his application, relies on two main grounds. The first relates to a claim that the Tribunal had not made further inquiries, and, second, that the Tribunal erred in law by not properly considering the evidence, and particularly not considering the legal effect of the fact that the applicant's wife's mother had abandoned her as a baby.
It is clear that the Tribunal had made inquiries once the applicant had produced this death certificate, and the inquiries that it made, through legitimate channels, namely the Australian High Commission and the Registrar General in Fiji, were that the death certificate was fraudulent and that the applicant's wife had five brothers and sisters.
The basis of the second set of claims, under the second ground, is, to my mind, largely a request for a merits review, which is not a matter that the Court has jurisdiction to give. The claim that the applicant has made, that the Tribunal did not send any documents to the applicant's migration agent, will not avail the applicant. When the applicant first commenced proceedings, he did not have a migration agent and gave his own address as the address for correspondence. Even though a migration agent, one Kevin Glynn, made submissions on behalf of the applicant, no change was made to the applicant's correspondence particulars, so that the address for correspondence remained that of the applicant.
The fact is that the Tribunal made its decision on the facts, and the evidence provided by the applicant, namely the death certificate, was shown to be a bogus document. How that document came into existence remains a mystery but there was ample evidence, upon which the Tribunal could rely, to say that the death certificate was in fact fraudulent. In fact, on the facts available to the Tribunal, provided directly from the Registrar General in Fiji, no other conclusion could be reached.
The information from the Registrar General in Fiji, made as a result of the Tribunal's inquiries, through the Australian High Commission, established the factual situation that the applicant's wife did not meet the definition, as she had more than three near relatives overseas, and the production of a fraudulent document - even though no allegation was made that the applicant had produced the document personally - was, not surprisingly, fatal to the applicant's credibility.
There was no jurisdictional error. The application will be dismissed.
There is an application for costs on behalf of the Minister, who has been successful. The amount of $3,700.00 is sought, which is within the scale provided by sch. 1 of the Federal Magistrates Court Rules 2001 and it is indeed, on my calculation, a modest claim.
There is no reason why a successful respondent should be denied a costs order, although the applicant has put, and I believe him, that it would take him some time to save up that amount of money. That is not a reason not to make an order for costs but it is a reason that I should give favourable consideration to, to allow him time to pay. I will allow six months to pay.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 February 2006
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