Mohammed v Minister for Immigration - [2017] FCCA 2741

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2741

Catchwords:
MIGRATION – Skilled visa – allegation that applicant was a victim of fraud by S & S Migration – applicant choosing not to give evidence.

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

Cases cited:

Booth v Bosworth [2001] FCA 1453
Gill v Minister for Immigration and Border Protection [2016] FCAFC 142
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Jones v Dunkel (1959) 101 CLR 298
M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333
Minister for Immigration and Multicultural and Indigenous Affairs v Jing Shan Sun (2005) 146 FCR 498
O’Donnell v Reichard [1975] VR 916
RPS v R (2000) 199 CLR 620
Singh v Minister for Immigration and Border Protection [2016] FCAFC 141
Singh v Minister for Immigration and Border Protection [2017] FCCA 160
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 2741
Decision Date: 10 November 2017

CaseChat Overview and Summary

In *Mohammed v Minister for Immigration*, the applicant sought judicial review of a decision by the Minister for Immigration to refuse a skilled visa. The applicant alleged that they were a victim of fraud perpetrated by a migration agent. A key factual issue was whether the applicant had deliberately chosen not to give evidence regarding the alleged fraud. The Federal Court of Australia was required to determine the application.

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