Shaikh v MIMIA

[2006] HCATrans 297

[2006] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M121 of 2005

B e t w e e n -

MUSTAQ NASIR SHAIKH

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW ACJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 JUNE 2006, AT 9.41 AM

Copyright in the High Court of Australia

GUMMOW ACJ:   In August 1999 the applicant, a citizen of India, applied for a General Residence (Class AS) Spouse visa on the basis of his marriage to an Australian citizen, who was the applicant’s nominator for the purposes of the visa application.  The applicant was granted a temporary spouse visa and in February 2001 an officer of the respondent’s department advised the applicant that the department had received information that the applicant’s marriage was “no longer continuing”.  The applicant’s wife subsequently withdrew her nomination of him, but in September 2001 stated that she supported the applicant’s application and that the marriage was genuine and on-going.  However in October 2001 the applicant’s wife applied to the Federal Magistrates Court for dissolution of marriage, which application was granted in January 2002.  On the same day in October 2001 a delegate of the respondent refused the applicant’s application for a visa.

The Migration Review Tribunal affirmed the decision of the delegate on the basis that, at the time of the application for a visa and at the time of the delegate’s decision, the parties to the marriage were not in a spousal relationship within the meaning of reg 1.15A of the Migration Regulations 1994 (Cth). The Tribunal further found that the applicant had failed satisfactorily to demonstrate that he had suffered domestic violence for the purposes of satisfaction of subclause 801.221(6) of Sched 2 of the Migration Regulations.

The applicant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. His application was dismissed by Bryant CFM. A contention that the finding as to the absence of a spousal relationship was made in breach of procedural fairness was dismissed on the basis that the applicant had failed to substantiate that claim. An appeal to the Full Court of the Federal Court (Heerey, Marshall and Weinberg JJ) was dismissed. Their Honours determined the appeal on the basis that the Chief Federal Magistrate was correct to find that the statutory declaration furnished by the applicant did not satisfy the requirements of reg 1.23(2)(b) of the Migration Regulations, thereby failing to “set out the allegation” that the applicant had suffered relevant domestic violence as required by reg 1.25(2).

The applicant now argues that the terms of the regulations do not make clear that the applicant’s statutory declaration must depose to his “state of mind”, and that in the absence of a clear intention to that effect they should not be so construed. The applicant further claims that s 359A(1) of the Migration Act 1958 (Cth), or alternatively procedural fairness, required that notice be given to the applicant that the statutory declaration did not comply with the regulations.

The respondent answers that the construction of the regulations preferred by the Tribunal, the Chief Federal Magistrate and the Full Court of the Federal Court was correct; that the inadequacy of the statutory declaration was not “information” within the meaning of s 359A(1); that procedural fairness would not require the Tribunal to give the applicant notice of a deficiency in his case; and furthermore that none of these questions were raised in the courts below and that it would be inappropriate to permit them to be raised before this Court.

The respondent’s contentions should be preferred.  No error on the part of the Full Court of the Federal Court has been demonstrated that would warrant a grant of special leave.  Special leave is refused with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave with costs.  I publish the disposition signed by Heydon J and myself.

AT 9.44 AM THE MATTER WAS CONCLUDED