FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOHAMMED v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2741 |
| Catchwords: EVIDENCE – Whether the rule in Jones v Dunkel applies to applications under the Migration Act 1958 (Cth) – it does not. |
| Legislation: Evidence Act 1995 (Cth) s.140 Migration Act 1958 (Cth), ss.359A, 359C, 360, 360A Migration Regulations 1994 (Cth) sch.2, pt.485, 485.221, 485.224 |
| Applicant: | MUSHTAQUDDIN MOHAMMED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2335 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 31 August 2017 |
| Date of Last Submission: | 19 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| Applicant in person |
| Counsel for the First Respondent: | Mr T Smyth |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed 19 November 2014 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2335 of 2014
| MUSHTAQUDDIN MOHAMMED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
S & S Migration (“S & S”), a migration agency once in operation in Australia, orchestrated widespread chaos and disruption to the migration system in Australia by reason of its fraudulent activities.
S & S was ultimately driven out of Australia. The effects of its activities were felt for many years. The visa application in this case was said to have been affected by its fraud.
In his application to this Court for judicial review
filed 19 November 2014, the applicant asserted he was a victim of
S & S’s fraud. He said the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), when hearing his merits review from the decision of the delegate dated 29 March 2012, denied the applicant “natural justice”.[1] In support of that assertion the applicant relied on a document three paragraphs in length running for a page and a half. The applicant also swore an affidavit in support of his contentions affirmed 19 November 2014.
[1] Application filed on 19 November 2014 at p.3.
The Tribunal found that the applicant did not meet the mandatory criteria for the grant of the…
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- Case
- [2017] FCCA 2741
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the rule in *Jones v Dunkel* applied to proceedings under the *Migration Act 1958* (Cth). This rule generally permits an adverse inference to be drawn against a party who fails to call a witness who could have given material evidence. The Court also had to consider the implications of the applicant's decision not to give evidence concerning the alleged fraud.
Justice Wilson held that the rule in *Jones v Dunkel* does not apply to applications under the *Migration Act*. Her Honour reasoned that the *Migration Act* establishes a statutory framework for visa applications that is distinct from general civil litigation. The Court found that the applicant's failure to give evidence did not automatically lead to an adverse inference against them. Instead, the Court considered the evidence that was before it, including the applicant's submissions and the material provided by the Department.
The Court ultimately found that the applicant had not established that they were a victim of fraud. Consequently, the application for judicial review was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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