MUHAMMAD SALEEM v MIGRATION REVIEW TRIBUNAL AND ANOR N 1718 of 2003
ALLSOP J 30 MARCH 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1718 of2003
BETWEEN:
MUHAMMAD SALEEM APPLICANT
AND:
MIGRATION REVIEW TRIBUNAL FIRST RESPONDENT
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
JUDGE:
ALLSOP J
DATE OF ORDER:
30 MARCH 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.On or before 6 April 2004, the applicant file and serve draft short minutes of order conformable with the reasons published today.
2.Stand the matter over to a date to be fixed for the making of orders and for any argument in relation thereto.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1718 of2003
BETWEEN:
MUHAMMAD SALEEM APPLICANT
AND:
MIGRATION REVIEW TRIBUNAL FIRST RESPONDENT
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
JUDGE:
ALLSOP J
DATE:
30 MARCH 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant seeks judicial review under s 39B of the Judiciary Act 1903 (Cth) of two decisions: first, the decision of the Migration Review Tribunal (the Tribunal) made on 8 October 2003 in which the Tribunal affirmed a decision made by a delegate of the respondent Minister on 27 November 2002 to cancel the applicant’s permanent visa; and secondly, the underlying decision of the delegate.
The applicant was granted a spouse visa on 10 July 2002. On 27 November 2002, the visa was cancelled under s 109 of the Migration Act 1958 (Cth) (the Act) by the delegate by reason of a claimed failure to provide correct answers to the Department contrary to s 101 of the Act as expanded s 99 of the Act. The substance of the alleged non-compliance was that the applicant had given false information about living as man and wife with his spouse. Both of the decisions of the Tribunal and the delegate are attacked because if it be the case that the Tribunal decision should be set aside and remitted to the Tribunal to be heard according to law that leaves outstanding and apparently operative the decision of the delegate cancelling the visa. The applicant is currently in Pakistan and is unable, without a visa, to travel to Australia. He also had a business in Australia. If the delegate, as well as the Tribunal, has exhibited such error as would entitle the applicant to declarations and orders quashing the decision, the position would be, it is said, that the status of the applicant would be governed by the former permanent visa that he had.
I heard the matter on Wednesday 10 March 2004. I indicated to the parties, having set the matter down only for a half day, that I would deal with the attack on the Tribunal’s decision and if necessary deal with 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.
Continue reading Saleem v MRT
Sign in free to access the full text
Details
AGLC
Saleem v MRT [2004] FCA 234
Case
[2004] FCA 234
Decision Date
CaseChat Overview and Summary
The matter of Saleem v MRT was heard by a court on 10 March 2004. The applicant, a citizen of Pakistan, had applied for a spouse visa based on his marriage to Ms Ali, a New Zealand citizen and Australian permanent resident. The applicant's visa was subsequently cancelled by the delegate of the Department of Immigration and Multicultural Affairs. The applicant sought judicial review of the delegate's decision, and subsequently, the decision of the Migration Review Tribunal, which affirmed the delegate's decision.
The legal issues before the court included whether the applicant had complied with statutory requirements regarding the accuracy of information provided in his visa application and whether the Tribunal had exercised its powers in accordance with the Migration Act 1958 (Cth). Specifically, the court was required to determine whether the Tribunal's decision to affirm the delegate's decision was lawful, reasonable, and procedurally fair.
The court examined the statutory context of the case, including sections 100, 101, and 105 of the Migration Act 1958 (Cth), which impose obligations on non-citizens to provide accurate information in their visa applications. The court also considered the Tribunal's approach to assessing the applicant's credibility and the weight to be given to the evidence presented. Ultimately, the court found that the Tribunal had exercised its powers correctly and that its decision was supported by the evidence. The court held that the Tribunal was entitled to find that the applicant had not complied with the statutory requirements and that the delegate's decision to cancel the applicant's visa was lawful.
The court ordered the applicant to file and serve draft short minutes of order by 6 April 2004 and stood the matter over to a date to be fixed for the making of orders and for any argument in relation thereto.
Orders
Orders of the court
1. On or before 6 April 2004, the applicant file and serve draft short minutes of order conformable with the reasons published today.
2. Stand the matter over to a date to be fixed for the making of orders and for any argument in relation thereto.
Background
Background to the litigation
I heard the matter on Wednesday 10 March 2004. I indicated to the parties, having set the matter down only for a half day, that I would deal with the attack on the Tribunal’s decision and if necessary deal with the delegate’s decision on another day.the uncontested background facts On 29 May 2000, the applicant and Shabreen Nisha Ali married. Ms Ali was a New Zealand citizen and Australian permanent resident. The applicant is, and was, a citizen of Pakistan, having been born in Faisalabad on 8 February 1975. Ms Ali was born in Suva, Fiji on 16 January 1981. On 31 May 2000, the applicant applied for a spouse visa on the basis of his marriage to Ms Ali. In the application, the applicant told the Department that he married on 29 May 2000 and that he resided with Ms Ali, as husband and wife, at 1/66 Chapel Street, Belmore, New South Wales. Thereafter, on a number of occasions until, and indeed after, the grant of the permanent spouse visa on 10 July 2002, the applicant told the Department that he lived with his wife, Ms Ali, as husband and wife. After receipt by the Department of information sent to it contradicting that fact, the Department investigated the applicant’s position. By November 2002 it would appear that the marriage between the applicant and Ms Ali had broken down. Ms Ali (who had in the past supplied information conformable with that which the applicant supplied as to their relationship) provided information to the Department to the effect that she and the applicant had never lived together as man and wife. On 4 November 2002, the applicant was sent a notice of intention to cancel his visa. On 29 November 2002, after the applicant responded to this notice, the applicant’s visa was cancelled by the delegate. It will be necessary in due course to examine the findings made by the Tribunal. Before that, however, it is necessary to understand the statutory scheme within which the Tribunal (and the delegate) was working. The arguments of the applicant before me, in significant respects, depend upon a particular (and strict) construction of the relevant provisions.the statutory context Section 101 of the Act requires that visa applications be correct. The section is in the following terms:A non-citizen must fill in his or her application form in such a way that: (a)all questions on it are answered; and(b)no incorrect answers are given. Section 100 of the Act makes clear that an answer to a question is incorrect even though the person who gave the answer or caused the answer to be given did not know that it was incorrect. Further, the notion of what is the “application form” for s 101 is widened by s 99 to incorporate all information given in relation to the application for a visa including information to the Department, the Minister or a Tribunal reviewing a decision under the Act. Section 99 is in the following terms:Any information that a non-citizen gives, causes to be given or that is given on his or her behalf to the Minister, an officer or a person or Tribunal reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given orally or in writing and whether at an interview or otherwise.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
ALLSOP J
After receipt of this material the delegate contacted Ms Ali to discuss the information provided by the applicant and to seek her response. Significant parts of what Ms Ali said on that occasion were contrary to what the applicant had said in his response of 20 November. By this time Ms Ali had already provided information to the delegate that she had never lived with the applicant as husband and wife. The delegate also made contact with people who had provided statutory declarations with the applicant’s response. It is unnecessary to deal with these enquiries in detail. It is sufficient to say that they did not apparently falsify, in any way, the information that Ms Ali had given to the Department. The delegate also spoke to Ms Ali’s mother. In this communication it became plain that Ms Ali’s mother was not aware of the marriage having taken place and she thought that the applicant was Ms Ali’s boyfriend.the delegate’s decision On 27 November 2002, the delegate cancelled the visa of the applicant. The decision record of the delegate indicated that she was satisfied that Ms Ali and the applicant had never lived as husband and wife and that much of the information provided in support of the applicant’s application for the visa was incorrect. The delegate stated that she was satisfied that the applicant had not complied with ss 101 and 105 of the Act. The delegate then proceeded to deal with the exercise of the power contained within s 109. the review by the Tribunal The applicant sought review by the Tribunal. On 26 May 2003, prior to the hearing before the Tribunal, the Tribunal sent, pursuant to s 359A of the Act, an invitation to the applicant to comment on information. This communication referred to various statutory declarations which supported the proposition that Ms Ali had always lived with her mother and had not lived in Chapel Street, Belmore or Haldon Street, Lakemba and that rather than living as man and wife the two had kept the marriage (after an elopement) a secret and had seen each other as if they were, as one statutory declaration put it, undertaking a “dating-like” routine. Some of the statutory declarations also made allegations that the applicant had used Ms Ali for immigration reasons. On 20 June 2003, lawyers acting for the applicant answered this by providing a further statutory declaration of the applicant dated 18 June 2003 to the Tribunal together with a chronology of the relationship between the applicant and Ms Ali. The statutory declaration reasserted the fact that Ms Ali and the applicant had lived together as husband and wife until the first week of August 2002. It would appear that Ms Ali applied for divorce from the applicant on 15 April 2003. On 30 July 2003, the Tribunal, pursuant to s 359A, sent another invitation to comment on information adverse to the applicant. This letter was sent after the hearing of the matter before the Tribunal. On 2 September 2003, the lawyers for the applicant answered this by providing to the Tribunal further material including a statutory declaration from the applicant, various documentation and a number of statutory declarations from neighbours and friends said to confirm that they had seen Ms Ali residing with the applicant at Haldon Street, Lakemba. Submissions were also contained in the letter.