KHALSA v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 100
•15 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHALSA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 100 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a tourist visa- visa applicants seeking to migrate to Australia permanently – no jurisdictional error. |
| Migration Regulations 1994 (Cth) |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 ReMinister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SZPZH v Minister for Immigration & Anor [2011] FMCA 407 SZPZH v Minister for Immigration & Anor [2011] FCA 960 WAEE v Minister for Immigration [2003] FCAFC 174, (2003) 75 ALD 630 |
| Applicant: | RAM RAVI SINGH KHALSA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Numbers: | SYG 1925 of 2011 |
| SYG 1926 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 15 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2012 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms L Weston Minter Ellison |
ORDERS
The applications are dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to both applications, fixed in the sum of $7,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1925 of 2011
SYG 1926 of 2011
| RAM RAVI SINGH KHALSA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”) made on 10 August 2011. The Tribunal affirmed decisions not to grant to the applicants a tourist class TR visa. There are two Tribunal decisions made on the same day which are essentially the same, and concern the wife and step-daughter of the review applicant, Mr Khalsa. I previously made directions that the two judicial review applications filed on 30 August 2011 be heard concurrently.
The following statement of background facts relating to this matter is derived from the Minister’s written submissions filed 8 February 2012.
Mr Khalsa and the visa applicant wife were married in India on
22 August 2009.[1]
[1] Court Book page 30. Note all references to the "Court Book" in these submissions refer to the Court Book filed in SYG1925/2011 unless stated otherwise.
On 15 October 2010 Mr Khalsa lodged applications for tourist (Class TR) visas for the visa applicant wife and her youngest daughter from her previous marriage, the visa applicant step-daughter. [2]
[2] Court Book pages 1-18
In a covering letter to the Australian High Commission in New Delhi, Mr Khalsa stated that three previous applications for tourist visas had been refused, in addition to an application for a partner (spouse) visa.[3] The letter stated that at that time, an application to the Tribunal for review of the decision refusing to grant a spouse visa had been lodged but not decided.[4]
[3] Court Book page 1
[4] Court Book page 2
Both visa applicants applied to visit Australia for twelve months.[5]
In response to a question in the visa application form, the stated purpose of the visa applicant wife's proposed visit was given as follows:
I intend to stay with my husband while waiting for the Tribunal Appeal on my Spouse Visa to be processed and return when a decision is ready. [6]
[5] Court Book pages 3 and 12
[6] Court Book page 5
In response to a question in the visa application form, the stated purpose of the visa applicant step-daughter's proposed visit was given as follows:
I intend to stay with my mother and step-father while waiting for our Appeal to be processed and return when a decision is ready. [7]
[7] Court Book page 14
Two completed forms were provided by which Mr Khalsa was appointed as the migration agent for both visa applicants.[8] A number of supporting documents were provided in support of the applications including a Hindu Marriage Registration Certificate, a statutory declaration of Mr Khalsa, bank records and a translated affidavit of the visa applicant wife's ex-husband.[9] Two documents both dated
12 October 2010 and titled "Submission" were also provided with the applications.[10]
[8] Court Book pages 19-27
[9] Court Book pages 28-42
[10] Court Book pages 43-70
By decisions dated 15 November 2010 a delegate of the Minister refused the applications for tourist (Class TR) visas. The delegate found that the visa applicants did not meet clause 676.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). Clause 676.211 stipulates that:
The applicant satisfies the Minister that the applicant's expressed intention to only visit Australia is genuine.
Mr Khalsa lodged applications with the Tribunal seeking review of the delegate's decisions on 17 November 2010.[11]
[11] Court Book pages 85-102; and Court Book in proceedings SYG1926/2011 at 85-102
By letters dated 6 April 2011 the Tribunal advised that it had considered the material before it and was unable to make favourable decisions on that information alone.[12] Mr Khalsa was invited to appear before the Tribunal on 11 May 2011 to give evidence and present arguments relating to the issues arising in the applications.[13] In those letters, the Tribunal also indicated to that it may wish to take evidence from the visa applicants.[14]
[12] Court Book pages 111-112; and Court Book in proceedings SYG1926/2011 at 111-112
[13] Court Book pages 111-112; and Court Book in proceedings SYG1926/2011 at 111-112
[14] Court Book page 111; and Court Book in proceedings SYG1926/2011 at 111
On 25 April 2011 Mr Khalsa sent the Tribunal copies of a covering letter and submissions which he had prepared in relation to the visa applicant wife's spouse visa application.[15] In covering notes, Mr Khalsa stated that he believed "these issues" were also important in relation to both "visitor visa appeals."[16]
[15] Court Book pages 123-132; and Court Book in proceedings SYG1926/2011 at 123-132
[16] Court Book page 123; and Court Book in proceedings SYG1926/2011 at 123
On 26 April 2011 Mr Khalsa sent the Tribunal copies of a further set of submissions which he had prepared in relation to the visa applicant wife's spouse visa application together with enclosures.[17] On 10 May 2011 Mr Khalsa sent the Tribunal copies of a further set of submissions.[18] The submissions had enclosed an affidavit of Surinder Pal Singh.[19]
[17] Court Book pages 133-162; and Court Book in proceedings SYG1926/2011 at 133-160. It is noted that the affidavit of Surinder Pal Singh was not provided to the Tribunal in relation to the visa applicant step-daughter at this juncture, but that affidavit had already been provided with both original applications and so was before the Second Respondent (see pages 39 and 40 of Court Book in proceedings SYG1926/2011).
[18] Court Book pages 163-180; and Court Book in proceedings SYG1926/2011 at 161-178
[19] Court Book page 180; and Court Book in proceedings SYG1926/2011 at 178
Mr Khalsa appeared at the hearing on 11 May 2011, at which evidence was taken from the visa applicant wife and the visa applicant step‑daughter.[20] Documents were received at the hearing including account details and phone records.[21]
[20] Court Book pages 181-185
[21] Court Book pages 186-205
At the hearing, the Tribunal put information to Mr Khalsa which it advised might adversely affect the outcome of the review.[22] On 16 May 2011 Mr Khalsa provided what was described as a "follow up letter" to the Tribunal, addressing the issues which had been put to him at the hearing.[23]
[22] Court Book page 251 at [47]-[52]
[23] Court Book pages 206-120; and Court Book in proceedings SYG1926/2011 at 185-189
By letters date 18 May 2011 the Tribunal wrote to Mr Khalsa inviting him to comment on or respond to information which it considered would, subject to his comments or response, be the reason or a part of the reason for affirming the decision under review.[24] The information in the letter concerned inconsistencies between responses provided in a fee waiver application form, a letter from Mr Khalsa and his evidence at the hearing on 11 May 2011.[25]
[24] Court Book pages 211-212; and Court Book in proceedings SYG1926/2011 at 190-191
[25] Court Book pages 211-212; and Court Book in proceedings SYG1926/2011 at 190-191
Mr Khalsa provided a response to the Tribunal’s letter on 3 June 2011 including a covering letter, submissions and enclosures.[26] Mr Khalsa sent further correspondence to the Tribunal by on 19 June 2011,
21 July 2011 and 9 August 2011.[27]
[26] Court Book pages 213-233; and Court Book in proceedings SYG1926/2011 at 192-212
[27] Court Book pages 234-244; and Court Book in proceedings SYG1926/2011 at 213-218
The decisions of the Tribunal
By two decisions dated 10 August 2011 the Tribunal separately affirmed each of the decisions under review.[28] In both cases, the Tribunal found that the relevant visa applicant's intention to only visit Australia was not genuine, and that she therefore did not satisfy the criteria specified by clauses 676.211 and 676.221(2)(a) of the Regulations.[29]
[28] Court Book pages 246-255; and Court Book in proceedings SYG1926/2011 at 220-229
[29] Court Book page 255 at [75]; and Court Book in proceedings SYG1926/2011 at 229 at [73]
In reaching its decisions, the Tribunal made the following findings and observations:
a)The Tribunal had regard to the guidelines set out in the Procedures Advice Manual which it noted were not binding upon it, although they provided guidance in relation to the issues for consideration.[30]
b)The Tribunal found that Mr Khalsa was not a credible witness.[31]
c)The Tribunal noted that there was nothing before it which was adverse to the visa applicant's credibility.[32] It found that the period of time proposed for the visit to Australia was consistent with the intention of seeing Mr Khalsa.[33]
d)The Tribunal had regard to the visa applicants' situations in India and in Australia and their expressed desire to stay in Australia.[34] It concluded that there were significant factors which would encourage them to remain in Australia rather than return to India.[35]
e)The Tribunal found that the visa applicant wife and Mr Khalsa were not in fact as close as claimed and that the relationship was a strategy designed to enable the visa applicant to remain in Australia.[36] It considered that this showed an intention to reside here permanently and that the visa applicant wife would not return to India at the expiry of her visa, if she was granted the visas sought.[37]
f)As the Tribunal considered that the visa applicant step-daughter would remain with her mother, this lead to the conclusion that she would also remain in Australia if her mother did so.[38]
[30] Court Book page 253 at [60]; and Court Book in proceedings SYG1926/2011 at 226 at [54]
[31] Court Book page 253 at [63]; and Court Book in proceedings SYG1926/2011 at 227 at [57]
[32] Court Book page 253 at [64]; and Court Book in proceedings SYG1926/2011 at 227 at [58]
[33] Court Book page 253 at [65]; and Court Book in proceedings SYG1926/2011 at 227 at [59]
[34] Court Book page 254 at [66]-[71]; and Court Book in proceedings SYG1926/2011 at 227-228 at [61]-[70]
[35] Court Book page 254 at [71]; and Court Book in proceedings SYG1926/2011 at 228 at 70]
[36] Court Book page 255 at [75]; and Court Book in proceedings SYG1926/2011at 229 at [72]
[37] Court Book page 255 at [75]; and Court Book in proceedings SYG1926/2011at 229 at [72]
[38] Court Book in proceedings SYG1926/2011 at 229 at [72]
Accordingly the Tribunal concluded that the visa applicants failed to satisfy the requirements of clause 676.211 and clause 676.221(2)(a).
Mr Khalsa continues to rely upon the two judicial review applications filed on 30 August 2011. There are 10 grounds in those applications:
1. The Tribunal made an error of law by not properly considering the evidence.
2. The Tribunal made an error of law by not considering the reasons given for not disclosing the Client Trust Accounts and Superior Migration business account, being that, by law, the Review Applicant must keep information relating to clients private and supplying details would violate the Review Applicant’s legal responsibilities.
3. The Tribunal made an error of law by considering discrepancies in bank statement[s] were the fault of the Review Applicant and therefore the Review Applicant was not a [Credible] Witness.
4. The Tribunal made an error of law by considering the marriage between the Review Applicant and the [mother of the Visa Applicant] Visa Applicant by only looking at two, (2), weak points and thereby prejudged the matter.
5.The Tribunal made an error of law by considering the three, (3), month period between when the Review Applicant met [the mother of] the Visa Applicant and their marriage was evidence of that the marriage was not a genuine marriage without looking at any of the positive issues which relate to a genuine marriage.
6. The Tribunal made an error of law by considering that not knowing the names of the in-laws who have not had anything to do with [the mother of the Visa Applicant and] the Visa Applicant due to [the mother of the Visa Applicant’s previous divorce] her divorce without looking at any of the positive issues which relate to a genuine marriage [and family relationship between the Review Applicant and the mother of the Visa Applicant.]
7. The Tribunal made an error of law by determining the marriage between the Review Applicant and [the mother of] the Visa Applicant was not a genuine marriage by not properly considering any of the grounds which support a genuine marriage [and concluding that the Visa Applicant’s visit was not genuine.]
8. The Tribunal made an error of law by trivialising the medical conditions (which included, a Spinal Fracture, Depression, Flashing in the left Eye, Migraines, Grand Mal Seizures, Diabetic), of the Review Applicant and not considering the need of the Review Applicant for having and wife [and step-daughter] to come to Australia to help look after him.
9. The Tribunal made an error of law by improperly considering the legal activities of the [mother of the] Visa Applicant on a previous visit, as evidence that the current Visa Applicant’s visit is not genuine.
10.The Tribunal, by only looking at two, (2) negative issues of the marriage between the Visa Applicant’s mother and the Review Applicant and one, (1), legal action by the Visa Applicant’s mother, made an error of law by prejudging the matter.
The applications are supported by written submissions. Mr Khalsa also tendered as an exhibit[39] correspondence from the Australian diplomatic mission in New Delhi concerning his wife’s spouse visa application.
[39] exhibit A1
I also have before me as evidence the court books filed in these matters on 19 October 2011, and also the decision of the Tribunal made on
9 November 2011 on the spouse visa application by the review applicant’s wife and step-daughter.
The circumstances in these matters, as explained to me in oral submissions, have caused the review applicant, Mr Khalsa, concern, personal offence and indignation. In short, his wife and step-daughter wish to live in Australia permanently, and for that purpose, have sought a spouse visa to enable them to come here.
Being aware that the process of obtaining a spouse visa would take a long time – at least seven months – Mr Khalsa and his wife and step‑daughter evidently decided that there should be applications for tourist visas to enable his wife and step-daughter to come to Australia pending the outcome of the spouse visa application. The criteria for the grant of a tourist visa are set out in the Regulations in clause 676. Relevantly, the decision-maker must be satisfied that the purpose of the visa applicant’s visit to Australia is a temporary one.
In the present case, on any reasonable view, that intention was questionable, because it was obvious that Mr Khalsa’s wife and step‑daughter were seeking to remain in Australia permanently.
Mr Khalsa and, it appears, his family sought to answer that concern, both by giving assurances that that was not the intention of the tourist visa application, and also by pointing out that the visa applicants would have to be outside Australia at the time a decision was made on the spouse visa application. It appears that the Tribunal was aware of that consideration, as it appears to have obliquely referred to it at [70] and [71] of its decision[40]:
The visa applicant has indicated that she ultimately wants to remain in Australia, having applied for a spouse visa.
Given the above, the Tribunal is of the view that there are significant factors which would encourage the visa applicant to remain in Australia rather than return to India. The Tribunal notes the review applicant’s submissions that the visa applicant overstaying her visa, or breaching any conditions, would be detrimental to her spouse visa application. The Tribunal accepts this, but as this spouse application has been rejected by the Department and the appeal to this Tribunal has not been finalised, there is not strong indication that she would be successful in this application, regardless of her stay in Australia.
[40] Court Book page 254; and Court Book in proceedings SYG1926/2011at 228 at [69]-[70]
It was certainly open to the Tribunal to conclude that it was not satisfied that the purpose and intention of the visa applicants was to visit Australia temporarily. Mr Khalsa’s concern is the manner in which the Tribunal arrived at that conclusion. He is offended that the Tribunal made serious adverse credibility conclusions against him.[41] He is, in particular, offended at the Tribunal’s observations concerning the genuineness of his marriage, his financial affairs and his state of health. His concern is justified, having regard to the more recent decision of the Tribunal on 9 November 2011 on the spouse visa application.
[41] Which might assume particular importance because of his profession as a migration agent.
In that decision, the Tribunal remitted the application for a partner class UF visa to the Department for reconsideration with a direction that Mr Khalsa’s wife meets criterion 309.221 of schedule 2 to the Regulations for a subclass 309 partner provisional visa. In that decision, the Tribunal dealt with the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, the nature of the persons’ commitment to each other, and other relevant considerations, and concluded that the relationship is a genuine one.
The Tribunal in the decisions before me took a different view. It is, of course, a feature of administrative review that different decision-makers may make different decisions. The Tribunal on the visitor visa review applications appears to have doubted that the visa applicants would succeed in the case before the Tribunal on the spouse visa application. As is now apparent, the Tribunal was wrong in that view. On the facts as found by the Tribunal on the spouse visa application, the Tribunal in the cases before me was wrong in relation to the genuineness of the relationship, and may also have been wrong in respect of other issues of concern to it relating to Mr Khalsa’s health and need for support, and his financial circumstances.
I am prepared to accept that errors of fact were probably made by the Tribunal in dealing with the review application in respect of the tourist visa applications. However, errors of fact do not necessarily establish an error of law, and beyond that, an error of law going to jurisdiction. In my view, the Tribunal in the cases before me probably went further than it needed to in determining the issue that it had to determine, and probably acted imprudently in advance of the Tribunal decision on the spouse visa application.
Nevertheless, it was clearly open to the Tribunal on the material before it to conclude that the visa applicants did not have a genuine intention to visit Australia temporarily. Regardless of the particular facts found or the process of reasoning that the Tribunal followed to reach its conclusion, on the material, the conclusion was open. That is because the visa applicants themselves admitted that they intended to remain in Australia permanently. Any absence from Australia would be temporary, in order to meet the requirements for the grant of the spouse visa.
In respect of the grounds of review raised in the application, which may be broadly grouped into four allegations, I prefer the submissions of the Minister to those of Mr Khalsa.
Allegation (a) - The Tribunal erred in not properly considering the evidence and/or concluding that the applicant was not a credible witness (Grounds 1-3 and 8).
Ground 1 of the applications to the Court alleges that the Tribunal failed to properly consider the evidence before it and Grounds 2 and 3 challenge aspects of the Tribunal’s reasoning which led to the finding that Mr Khalsa was not a credible witness. Ground 8 alleges that the Tribunal erred in “trivialising” Mr Khalsa’s medical conditions and failing to consider his need for the visa applicant to be in Australia.
Ultimately, these grounds allege that the Tribunal erred in its treatment of the evidence before it and/or in concluding that Mr Khalsa was not a credible witness. To this extent, the grounds do not point to any arguable jurisdictional error on the part of the Tribunal.
It is well established that the weight to be accorded to evidence is a matter for the Tribunal (Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259). Moreover, in reaching a decision the Tribunal is not required to refer to every piece of evidence before it (WAEE v Minister for Immigration (2003) 75 ALD 630). Accordingly, in so far as the grounds cavil with the Tribunal’s treatment of Mr Khalsa’s evidence, no arguable jurisdictional error is disclosed.
Similarly, to the extent that Grounds 1, 2, 3 and 8 of the applications cavil with the Tribunal’s factual findings, they do not point to any arguable jurisdictional error. It is well established that findings of fact, including findings of credibility, are a function of the Tribunal par excellence and that it is not the role of this Court to engage in merits review of such findings (cf Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 292; ReMinister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423).
Allegation (b) - The Tribunal prejudged the matter and was biased (Grounds 4 and 10).
Although Grounds 4 and 10 of the applications seem primarily intended to cavil with aspects of the Tribunal’s reasoning, they could be construed as allegations that the Tribunal’s decisions were affected by bias. Any inferred allegations of bias (whether actual or imputed) are not made out on the evidence before the Court. Mr Khalsa conceded in any event that bias was not alleged.
Allegation (c) - The Tribunal erred in determining that the marriage between the applicant and the visa applicant wife was not genuine (Grounds 5-7).
Grounds 5-7 of the applications to the Court cavil with aspects of the Tribunal’s reasoning which lead to the conclusion that Mr Khalsa and the visa applicant wife were not in a genuine marriage. Again, these allegations primarily attempt to engage the Court in impermissible merits review of the Tribunal’s reasoning and findings.
Moreover, the genuineness or otherwise of the visa applicant wife's marriage to Mr Khalsa was a matter which the Tribunal was properly permitted to consider in reaching its decisions.
In the context of reviewing the decisions of the delegate, the “relevant matters” which the Tribunal is bound to consider are the criteria for grant of a tourist (Class TR) visa.[42] The criteria for a tourist (Class TR) visa are set out in Part 676 of Schedule 2 of the Regulations and, relevantly, the Tribunal was required to consider whether the visa applicants' expressed intentions to only visit Australia were genuine (see clauses 676.211 and 676.221(2) and (3).
[42] WAEE v Minister for Immigration [2003] FCAFC 174 at [45]
In answering that question, the Tribunal was entitled to consider the intentions of the visa applicant wife in marrying Mr Khalsa, insofar as this revealed an underlying intention to remain in Australia after the expiry of such tourist visas as the visa applicants might be granted (cf SZPZH v Minister for Immigration & Anor [2011] FMCA 407 at [45]-[47], affirmed on appeal in SZPZH v Minister for Immigration & Anor [2011] FCA 960).
The more recent decision of the Tribunal on the spouse visa application establishes factual error by the Tribunal in these cases, but no more.
Allegation (d) - The Tribunal improperly had regard to the legal activities of the visa applicant wife on a previous visit to Australia (Ground 9).
Ground 9 of the applications to the Court allege that the Tribunal erred in having regard to the activities of the visa applicant wife on a previous visit to Australia, during which she left Australia for New Zealand before returning in order to extend her stay.
As a preliminary matter, this ground is raised in the proceedings concerning the visa applicant step-daughter (SYG1926/2011) even though the Tribunal’s findings in the relevant decision do not refer to the visa applicant wife's activities during her previous visit to Australia.[43] Accordingly, for the purposes of proceedings SYG1926/2011 the ground should be found to be premised upon a misconstruction of the Tribunal’s decision and dismissed.
[43] Court Book in proceedings SYG1926/2011 pages 226-229 at [52]-[73]
The visa applicant wife's past travel to Australia was referred to in the Tribunal’s decision to refuse to grant her a tourist (Class TR) visa.[44] In reaching that decision, the Tribunal acknowledged that the conduct was not illegal but considered that it revealed an intention to remain in Australia on the part of the visa applicant wife which was inconsistent with the expressed intention to only visit.
[44] Court Book page 254 at [72]-[73]
However, the Tribunal did not commit any jurisdictional error in having regard to the visa applicant wife's past conduct in this way.
The visa applicant wife's past conduct logically and cogently went to the question of whether her expressed intention to only visit Australia was genuine. Accordingly, to the extent that an allegation that an error was made of the type considered in Minister for Immigration v SZMDS (2010) 240 CLR 611 may be inferred from Ground 9 of the application to the Court, the ground is not made out.
I note for completeness that visa applicant wife's past travel to Australia was revealed in the documents submitted to the Department of Immigration and Citizenship with the original visa applications.[45] Moreover, that conduct was discussed with visa applicant wife at the Tribunal hearing, and was put to Mr Khalsa for comment.[46] At a minimum, that conduct displayed an intention to maximise as far as possible the duration of the visa applicant wife’s stay in Australia.
[45] Court Book pages 39-40
[46] Court Book pages 250 at [40]-[41] and 251 at [51]
Ground 9 of the application to the Court in proceedings SYG1925/2011 should be dismissed.
If I am wrong in my view as to the absence of jurisdictional error in the decisions of the Tribunal, I would nevertheless be minded to withhold relief in the exercise of discretion on the basis that Mr Khalsa and his wife and step-daughter have made substantial progress in their objective of obtaining visas to permit his wife and step-daughter to come to Australia permanently. I see no justification for requiring the Tribunal to reconsider its decision on the tourist visa applications pending the outcome of the processes bearing on the spouse visa application.
I will order that the judicial review applications be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs in excess of the Court scale, noting that work was done in two separate applications, which increased somewhat the amount of costs incurred on behalf of the Minister. Solicitor and client costs were $10,200, and the Minister sought a figure approaching 75 per cent of that.
Mr Khalsa sought to avoid an order for costs on the basis that it was reasonable for him to bring the matter to Court in light of the aspects of the decision which were open to criticism. While I accept that he was entitled to bring the matter to Court, there were other avenues open to him to deal with the detail and tone of the decision, which, in my view, were open to criticism, with the benefit of the more recent decision of the Tribunal on the spouse visa application.
I will order that Mr Khalsa pay the Minister’s costs and disbursements of and incidental to the applications, which I fix in the sum of $7,000.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of DRIVER FM
Date: 20 February 2012
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