SERFONTEYN v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SERFONTEYN & ORS v MINISTER FOR IMMIGRATION & ORS [2004] FMCA 333

MIGRATION – Application for spouse visa – claim of domestic violence against dependent child – whether child must be dependent at time of decision  – whether requirements for domestic violence satisfied – whether breach of natural justice when documentary evidence requested by Tribunal – whether tribunal required to inform applicant of regulation’s requirements for statutory declarations and police report.

Acts Interpretation Act 1901 (Cth), s.15AA

Migration Regulations 1994, r.1.03, 1.23, 1.24, sch.2 cl.820

Migration Amendment Regulations 1999 (No. 13), r.5

Grey v Pearson (1857) 6 H.L.C. 61
Ibrahim v Minister for Immigration and Multicultural and Indigenous and Affairs [2002] FCA 1279
Alim v The Minister for Immigration and Multicultural Affairs [2002] FCAA 1279
Du v Minister for Immigration and Multicultural Affairs [2000] FCAA 1115
Dietrich v R (1992) 177 CLR 292

Applicant: ABDURAKIP SERFONTEYN & ORS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

File No: MZ 795 of 2002

Delivered on: 28 May 2004

Delivered at: Melbourne

Hearing date: 4 April 2003

Judgment of: Phipps FM

REPRESENTATION

Counsel for the Applicant: Mr Baker

Solicitors for the Applicant: Fernandez & Johnson

Counsel for the Respondent: Ms Riley

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Each application is dismissed.

2. The applicants pay the respondents’ costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 795 of 2002

ABDURAKIP SERFONTEYN & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

Respondent

REASONS FOR JUDGMENT

1. The first applicant is a male National of the Republic of South Africa.  He first entered Australia as the holder of a long stay visitor visa on 28th February 1995.  He was subsequently granted a short stay visitor visa valid until 20 January 1996.  On 19 January 1996, the first applicant and his four sons applied for permanent residence on the basis that the first applicant was the spouse of an Australian citizen, namely Ms Gillian Dawson.  Ms Dawson was the nominator in connection with the visa application.  That application was refused by a delegate of the first respondent on 1 March 2001 on the basis that the applicant had ceased to be the spouse of Ms Dawson at the time of the decision.

2. The first applicant and two of his sons applied to the Migration Review Tribunal for review of that refusal on 29 March 2001.  The tribunal affirmed the refusal on 1 November 2001.  The applicants applied to the Federal Court for review of the tribunal's decision.  The application was transferred to the Federal Magistrates Court.

3. The first applicant and the nominator were married in Victoria on

   
   

   16 November 1995.  As already noted, the application for residence on spouse grounds was made on 19 January 1996.  The nominator notified the Department in writing on 8 September 1997 that her relationship with the first applicant had broken down and withdrew her nomination.  Attempts by the Department…