Kumar v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 649

MIGRATION – Migration Review Tribunal – remaining relative – cancellation of visa – allegedly false information about applicant’s marriages – marriages allegedly invalid – applicant allegedly “mentally incapable of understanding the nature and effect of the marriage ceremony” – whether Tribunal substituted its own lay opinion for an expert opinion – whether the Tribunal took into account an irrelevant consideration – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal’s decision was Wednesbury unreasonable.

Marriage Act 1961 (Cth), s.23B(1)(d)(iii)
Migration Regulations 1994 (Cth), reg.1.15

AK & NC (2004) FLC 93-178; [2004] FamCA 1006
Durham v Durham (1885) 10 PD 80
Forster, Otherwise Street and Forster (1923) 39 TLR 658
Fuduche v Minister for Immigration and Local Government and Ethnic Affairs (1993) 45 FCR 515
Ghosn v Principle Focus Pty Ltd & Ors (No.2) [2008] VSC 574
Leonid Zakinov v John Gibson and the Minister of Immigration and Ethnic Affairs [1996] FCA 1652
Privet v Vovk [2005] NSWSC 1258

Applicant: JOSEPH SANJAY KUMAR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG156 of 2009

Judgment of: Riley FM

Hearing date: 9 June 2009

Date of Last Submission: 9 June 2009

Delivered at: Melbourne

Delivered on: 30 July 2009

REPRESENTATION

Counsel for the Applicant: John Gibson

Solicitors for the Applicant: Dorota Sokolowski Lawyers

Counsel for the Respondents: Emily Latif

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 10 February 2009 and amended on 6 May 2009 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG156 of 2009

JOSEPH SANJAY KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application to review a decision of the Migration Review Tribunal affirming a decision to cancel the applicant’s general residence visa on the basis that the applicant had given false information in his application for the visa and in subsequent statements to the Immigration Department. 

2. On 29 July 1999, the applicant applied for a general residence visa on the basis that he was his mother’s last remaining relative.  In the application form, the applicant was asked if he had “previously been married or been in a de facto/common law marriage”.  He ticked “no”.  In answer to a question about his marital status, the applicant wrote “single”.  In a question asking for details of his spouse, the applicant wrote “N/A”.  On 2 July 1999, the applicant completed a form regarding his personal particulars.  In answer to a question about his current marital status, the applicant wrote, “Never Married”. 

   
   

   On 29 November 2001, the applicant swore a statutory declaration stating that he had been engaged to Ms Neelam Prasad for six or seven months ending in June 1999 and stating that he was now single.

3. The Tribunal found that:

   a)the…