Mohammed v Minister for Immigration and Border Protection [2018] FCA 767

Mohammed v Minister for Immigration and Border Protection [2018] FCA 767

The appeal failed because the appellant did not discharge the heavy civil burden of proving that fraud by S & S Migration invalidated his visa application and that he was neither complicit in nor indifferent to that fraud. His evidence was extremely general, imprecise, unsworn or untested, and he declined after caution to enter the witness box for cross-examination. The Tribunal had given him an opportunity to respond to adverse information and was entitled to decide the review without conducting a hearing when he failed to provide the requested information.

Jurisdiction
Australia
Judgment Date
24 May 2018
Procedural Posture
Appeal From Federal Circuit Court Dismissal of an Application for Judicial Review of a Tribunal Decision Affirming Refusal of a Skilled (provisional) (class Vc) Visa / Appeal Judgment
Outcome
The appeal is dismissed and the appellant must pay the first respondent's costs fixed at $6,439.00.
Legal Topics
['skilled (provisional) (class Vc) Visa' 'public Interest Criterion 4020' 'fraud by Migration Agent' 'validity of Visa Application' 'jurisdictional Error' 'procedural Fairness' 'burden and Standard of Proof']
['migration Law' 'administrative Law' 'judicial Review'] ['skilled (provisional) (class Vc) Visa' 'public Interest Criterion 4020' 'fraud by Migration Agent' 'validity of Visa Application' 'jurisdictional Error' 'procedural Fairness' 'burden and Standard of Proof']

Case Brief

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Procedural Posture

Appeal From Federal Circuit Court Dismissal of an Application for Judicial Review of a Tribunal Decision Affirming Refusal of a Skilled (provisional) (class Vc) Visa / Appeal Judgment

Legal Issues

  1. 1 ["Whether the Federal Circuit Court erred in dismissing the judicial review application concerning refusal of the appellant's Skilled (Provisional) (Class VC) visa." "Whether fraud by S & S Migration invalidated the appellant's visa application." "Whether the appellant discharged the burden of proving that he was neither complicit in nor indifferent to the migration agent's fraud." 'Whether the Tribunal and the Federal Circuit Court gave the appellant a fair opportunity to respond and give evidence.']

Ratio Decidendi

The appeal failed because the appellant did not discharge the heavy civil burden of proving that fraud by S & S Migration invalidated his visa application and that he was neither complicit in nor indifferent to that fraud. His evidence was extremely general, imprecise, unsworn or untested, and he declined after caution to enter the witness box for cross-examination. The Tribunal had given him an opportunity to respond to adverse information and was entitled to decide the review without conducting a hearing when he failed to provide the requested information.

Court Disposition

The appeal is dismissed and the appellant must pay the first respondent's costs fixed at $6,439.00.

Orders

  • ['The appeal is dismissed.' 'The appellant pay to the first respondent the costs of and in connection with the appeal fixed in the sum of $6,439.00.']