Mohammed v Minister for Immigration

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.