Saleem v Migration Review Tribunal [2004] FCA 234

FEDERAL COURT OF AUSTRALIA

Saleem v Migration Review Tribunal [2004] FCA 234 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 of 2003

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 of 2003

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 1 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. 2 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. 3 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.