Singh v Minister for Immigration and Border Protection

[2019] FCAFC 22

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2019] FCAFC 22

Appeal from:

Singh v Minister for Immigration & Anor [2018] FCCA 1136

File number:

NSD 816 of 2018

Judges:

REEVES, JAGOT AND DERRINGTON JJ

Date of judgment:

11 February 2019

Catchwords:

MIGRATION – appeal of a decision of the Federal Circuit Court of Australia regarding the construction of the expression “that is false or misleading in a material particular”

Held:  appeal dismissed

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348

Date of hearing:

11 February 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

8

Counsel for the Appellant:

Mr JF Gormly

Solicitor for the Appellant:

Labour Pains Legal

Counsel for the First Respondent:

Mr T Reilly

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

NSD 816 of 2018

BETWEEN:

HARDAYAL SINGH

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:	REEVES, JAGOT AND DERRINGTON JJ
DATE OF ORDER:	11 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The amended notice of appeal filed 23 January 2019 be dismissed.

2.The appellant pays the first respondent’s costs to be assessed failing agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Corrected from the transcript)

REEVES J:

1. This appeal concerns the expression “that is false or misleading in a material particular in relation to: (a) the application for the visa”. That expression appears in the “public interest criteria 4020” which the applicant was required to satisfy under clause 820.226 of Schedule 2 to the Migration Regulations 1994 (Cth).

2. The facts of this appeal are set out at [3]–[23] of the primary judgment and do not require repeating.

3. In Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 352­–354 (Black CJ, Davies and Neaves JJ) a Full Court of this Court identified the following three principles which, it considered, applied to the construction of the expression presently under consideration in a similar context in the Migration Act 1958 (Cth):

   (1)that the word “material” requires “no more and no less than that; the false particular must be of moment or of significance, not merely trivial or inconsequential”;

   (2)that a “statement will be relevant to that purpose if it may – not only if it must or if it will – be taken into account in making a decision under the [Migration] Act as to the grant of the visa or entry permit in respect of which the statement is made”; and

   (3)that the expression had to be assessed objectively.

4. I am not persuaded by the appellant’s submissions that there is any good reason to depart from these principles in this matter.  Specifically, as to (c) above, the appellant accepts that the statement he made about the paternity of the child was objectively false.  As to (b) above, he also accepts that that statement may have been taken into account by the Tribunal in making its decision on the grant of the visa he sought.

5. The appellant attempted to avoid this conclusion by contending that the statement was nonetheless equivocal. Even if it was, I consider it still fell within the principle in (b) above.  And, in any event, given what was said by the primary judge at [52] of the primary judgment, I do not consider the statement could be regarded as equivocal.

6. For these reasons, I do not consider there is any merit in the sole ground raised by the appellant’s amended notice of appeal.  Accordingly, the orders should be:

   1.        The amended notice of appeal filed 23 January 2019 be dismissed.

   2.        The appellant pays the first respondent’s costs to be assessed failing agreement.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:        

Dated:        14 February 2019

REASONS FOR JUDGMENT

JAGOT J:

1. I agree.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:        

Dated:        14 February 2019

REASONS FOR JUDGMENT

DERRINGTON J:

1. I also agree.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.

Associate:        

Dated:        14 February 2019