Sheik v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHEIK v MINISTER FOR IMMIGRATION [2004] FMCA 621

MIGRATION – Migration Review Tribunal decision – partner visa – deficiency in statutory declaration – relevance of compliance with requirements of statutory declaration – whether breach of s.359A of Migration Act – whether contents of statutory declaration supplied by Applicant’s ‘information’ for purposes of s.359A.

Migration Act 1958, s.359A
Migration Regulations 1994
Statutory Declarations Act 1959, s.8

Malik v Minister for Immigration and Multicultural Affairs (2002) 98 FCR 562
Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 201 (10 March 2004)
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 171

Applicant: SHAHID MUNIR SHEIK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 1198 of 2003

Delivered on: 9 September 2004

Delivered at: Melbourne

Hearing Date: 9 September 2004

Judgment of: McInnis FM

REPRESENTATION

Pro Bono Counsel for the Applicant: Mr J Belbruno

Counsel for the Respondent: Dr S Donaghue

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the application filed 30 October 2003 be dismissed.

2. The applicant shall pay the respondent's costs fixed in the sum of $6000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1198 of 2003

SHAHID MUNIR SHEIK

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application by Shahid Munir Sheik against the Minister for Immigration and Multicultural and Indigenous Affairs. It is an application filed on 30 October 2003 where the applicant seeks review of a decision made by the Migration Review Tribunal (the MRT) made on 7 October 2003.  The MRT had affirmed a decision under review not to grant a partner residence class BS visa to the applicant and had affirmed the delegate's decision.

2. The factual background is not in dispute and indeed it might be said that in this particular application the area of dispute is somewhat narrow.  The application itself refers to two grounds, first the respondent failed to observe the proper procedures with regard to the applicant and to act in accordance with substantial justice, and secondly that the respondent exceeded its jurisdiction. 

3. In the applicant's contentions of fact and law filed 25 February 2004 the applicant asserts that the tribunal exceeded its jurisdiction in that, inter alia, it failed pursuant to s.359A of the Migration Act 1958 (the Act) to inform the applicant of information it had that would be the reason or part of the reason to refusing the visa, and further and more particularly, the tribunal reached its decision on the ground that the document provided by a medical practitioner on behalf of the applicant was not a valid statutory declaration.  It is further argued that the tribunal failed to inform the applicant or to invite comments from the applicant regarding this information.

4. The appropriate background information and relevant statutory regime has been set out adequately in the respondent's contentions of fact and law filed 26 April…