Singh v Minister for Immigration and Multicultural Affairs

[2007] FCA 640

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Multicultural Affairs [2007] FCA 640

GURJEET SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 61 OF 2007

KIEFEL J
30 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 61 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	GURJEET SINGH Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	KIEFEL J
DATE OF ORDER:	30 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the respondent’s costs of the appeal.

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	NSD 61 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	GURJEET SINGH Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	KIEFEL J
DATE:	30 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the appellant seeks to appeal from a decision of the Federal Magistrate dismissing an appeal from the Migration Review Tribunal.  Two grounds are notified for the appeal.  The first is that the judgment is unfair, and the second is that the order for costs, in the sum of $5800, is unreasonable.  Despite the fact that the first ground does not disclose any legal error or is in any way particularised, I have heard submissions from the respondent and have considered the decisions of each of the Tribunal and the Federal Magistrate.

2. The appellant sought a visa which would enable him to remain in Australia on the ground of his claimed de facto relationship with an Australian citizen. The Migration Regulations 1994, reg 1.15A, required the appellant to be in a de facto relationship. He would be taken to be in such a relationship if, amongst other things, the Minister was satisfied that he and his de facto spouse have a mutual commitment to a shared life as husband and wife to the exclusion of all others (reg 1.15A(2)(c)(i)).

3. The appellant was found by the Tribunal to have been previously present in Australia and to have been married to a Ms Smedley in 1995, despite his denials. The denials were made in response to a number of invitations from the Tribunal to comment upon the allegations and the inferences which might be drawn from them. It also appeared in the response of his nominating spouse that she had been told by him that he had not been previously married. The Tribunal’s findings were based in large part upon the evidence of a hand-writing expert. The Tribunal found that the appellant was not truthful and had sought to mislead the Tribunal. It placed importance upon the appellant’s non-disclosure of the fact of his marriage to his de facto spouse and what it said about their relationship and his commitment to it. The Tribunal was not satisfied as to the matter referred to in reg 1.15A(2)(c)(i).

4. The appellant argued before the Federal Magistrate that the Tribunal had applied the wrong test because it had not followed a Procedures Advice Manual.  His Honour held that the manual, which was intended to be of some assistance to decision-makers, could not detract from the statutory question, which was the test which had been applied by the Tribunal.  Such an approach is clearly correct.  I can discern no error in the Federal Magistrate’s decision in that regard.

5. The second ground raised before the Federal Magistrate was that the Tribunal added a criterion of honesty about the disclosure of the first marriage and regarded it as, of itself, sufficient to determine the question of whether there was a commitment in the relationship.  The Federal Magistrate held the Tribunal had considered the whole relationship and in some detail.  This is plainly correct.  The Federal Magistrate considered that the statutory test had been followed and no jurisdictional error was disclosed.  That conclusion is plainly correct.  Views might differ about the weight to be given to the matter of the appellant’s non-disclosure to his de facto spouse and, inferentially, his lack of explanation about it, which resulted from the maintenance of his denial that he was married.  The Tribunal however considered that they were important in what they conveyed about the relationship and the appellant’s apparent commitment to it.  They could not be said to be irrelevant to the question raised by the regulation.  They are  matters of opinion which are not subject to review by the Federal Magistrates Court or this Court.

6. In relation to the question of costs, his Honour had an unfettered discretion.  The Federal Magistrate applied the usual rule, which is commonly applied in litigation of this nature.  The discretion could not be said to have miscarried.  The amount of the costs ordered is of the order of costs which are commonly made by this court.  Whilst it might be thought that costs in the Federal Magistrates Court might be a little less, I do not think there is sufficient in it to warrant a review of the discretion. 

7. For these reasons the appeal will be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:        30 April 2007

For the Appellant:	In Person
Solicitor for the Respondent:	Blake Dawson Waldon
Date of Hearing:	30 April 2007
Date of Judgment:	30 April 2007