Singh v Minister for Immigration - [2005] FMCA 1250

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION

[2005] FMCA 1250

MIGRATION – Review of decision of Migration Review Tribunal – Spousal Visa application – domestic violence – statutory declarations in support – contents of statutory declarations.

MIGRATION – Review of decision of Migration Review Tribunal – breach of principles of procedural fairness – failure to consider additional material – discretion to refuse to grant relief – application bound to fail on issue unrelated to additional material.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), regs 1.22, 1.23, 1.24, 1.25, 1.26, 1.27

Alin v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 979

Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 257

Cakmak vMinister for Immigration and Multicultural and Indigenous Affairs [2004] HCATrans 558 (10 December 2004)

Du v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1115

Ex parte Applicants S134/2002 [2003] HCA 1

Ibrahim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1279

Meroka v Minister for Immigration & Multicultural Affairs [2002] FCA 482

Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069

Su v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1409

Applicant:

LAKHWINDER SINGH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 1450 of 2003

Judgment of:

Riethmuller FM

Hearing dates:

8 December 2004

16 March 2005

Date of Last Submission:

16 March 2005

Delivered at:

Melbourne

Delivered on:

16 September 2005

REPRESENTATION

Counsel for the Applicant:

Mr Kissane

Solicitors for the Applicant:

Wimal & Associates

Counsel for the Respondent:

Mr Hay

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $6,500.00 – such costs to be paid within 3 months.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1450 of 2003

LAKHWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application pursuant to section 39B of the Judiciary Act 1903 with respect to a decision of the Migration Review Tribunal (‘the MRT’) confirming a decision of a delegate of the respondent not to grant the applicant a Partner (Residence)(Class BS) visa. The MRT decision was made on 4 December 2003.
At issue before the MRT was whether or not the applicant was eligible for the grant of a partner visa on the basis of the domestic violence provisions contained in regulations 1.22 and 1.26 of the Migration Regulations 1994. Those regulations are in the following terms:
1.22(1) A reference in these Regulations to a person having suffered domestic violence is a reference to a person being taken, under regulation 1.23, to have suffered domestic violence.
(2) A reference in these Regulations to a person having committed domestic violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed domestic violence in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 1250
Decision Date: 16 September 2005

CaseChat Overview and Summary

Singh v Minister for Immigration was a case before the Federal Court of Australia concerning the legality of a statutory declaration being admitted as evidence in judicial review proceedings. The applicant, Singh, contested the Minister for Immigration's decision to refuse him a visa, and submitted statutory declarations to the Migration Review Tribunal (MRT) as part of his application. However, the MRT did not consider these declarations, potentially due to a prohibition under regulation 1.27 of the Migration Regulations, which states that statutory declarations are not admissible in evidence unless specific conditions are met. This regulation raised a preliminary issue of whether the court could properly review the MRT's decision in light of the statutory prohibition on the admissibility of the declarations.

The court was required to decide whether regulation 1.27 of the Migration Regulations was valid and whether it prevented the court from considering the statutory declarations in judicial review proceedings. The court noted that while the regulations prohibited the admissibility of statutory declarations in judicial review proceedings, there were no provisions in the Migration Act or Regulations that allowed for their consideration. This raised a significant issue as it could leave the court unable to properly fulfil its functions under the Constitution with respect to judicial review proceedings. The court considered issuing a prerogative writ of certiorari to transfer the proceedings from the MRT to the Federal Court to allow for the consideration of the statutory declarations, thus circumventing the prohibition.

The court found that the writ of certiorari effectively placed the proceedings before the MRT in the Federal Court, thereby removing the prohibition of regulation 1.27 on the admissibility of the statutory declarations. Despite this, the court concluded that the statutory declarations were not considered by the MRT, leading to a jurisdictional error. The court dismissed the application and ordered that the applicant pay the respondent’s costs in the sum of $6,500.00, to be paid within three months.

Orders

Orders of the court

The application be dismissed.

The applicant do pay the respondent’s costs fixed in the sum of $6,500.00 – such costs to be paid within 3 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A preliminary point arises as a result of regulation 1.27 of the Migration Regulations. This regulation provides as follows:1.27 [Statutory declaration or statement not admissible in evidence] A statutory declaration made under regulation 1.25 or 1.26, or an opinion of an independent expert mentioned in paragraph 1.23 (1b) (b), is not admissible in evidence before a court or tribunal otherwise than in: (a)an application for judicial review or merits review of a decision to refuse to grant a visa the application for which included the non-judicially determined claim of domestic violence to which the statutory declaration or opinion relates; or (b)a prosecution of the maker of the statutory declaration under section 11 of the Statutory Declarations Act 1959 . Whilst the provisions of the Migration Act which require the transmission of the relevant file and documents to the MRT would clearly override the effect of this regulation for the purpose of the MRT hearing, there are no corresponding provisions for the purpose of judicial review proceedings. There is, therefore, nothing in the Migration Act or Regulations to override the clear prohibition in regulation 1.27 to the admission of the statutory declarations in evidence before me. If the regulation is correct it results in the court being left in a position of being unable to properly fulfil its functions under the constitution with respect to judicial review proceedings. I considered this matter and adopted the course of issuing a prerogative writ of certiorari in order to remove the proceedings from the MRT into this court, so as to then be able to determine whether or not a writ of mandamus ought to issue requiring the MRT to consider the matter again. It appears to me that the writ of certiorari has the effect of placing the proceedings before the MRT in this court, and as such regulation 1.27 would no longer prohibit the court reviewing the relevant statutory declarations. The evidence before the court is that the applicant provided a statutory declaration by himself dated 8 October 2003 and a statutory declaration by Chandralekha Krishnamurthi also made on 8 October 2003 to the MRT. It is apparent from a review of the court book and the decision that the MRT did not consider the terms of these affidavits. The applicant says in his affidavit that he delivered the statutory declarations to the MRT. His Migration Agent swears to the fact that he prepared a covering letter for the declarations, which he provided to the applicant for delivery to the MRT. An officer of the Department swore an affidavit to the effect that a search of the Departmental offices failed to locate the material, and generally as to the procedures in the office. Ultimately, I accept that the documents were forwarded to the MRT but not considered by them. This shows a jurisdictional error, in that potentially important documents (in this case statutory declarations relevant under the regulations) were not considered by the MRT.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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