Federal Court of Australia

Minister for Immigration and Citizenship v Singh (Application for Costs Certificate) [2026] FCAFC 91

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent be granted a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the first respondent.

Such payment will be in respect of:

(a)    the costs incurred by the first respondent in relation to the appeal; and

(b)    the costs incurred by the appellant in relation to the appeal that are required to be paid by the first respondent pursuant to Order 4 of the Orders made on 13 April 2026.

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

REASONS FOR JUDGMENT

THE COURT:

1    In Minister for Immigration and Citizenship v Singh [2026] FCAFC 42, the Full Court allowed the appeal of the Minister for Immigration and Citizenship (Minister) against a judgment of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA (Div 2)).

2    The Court ordered that the first respondent (Mr Singh) pay the Minister’s costs of the appeal but gave Mr Singh leave to apply for a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (Costs Act). The Court also made orders allowing the parties to file written submissions and for the application to be decided on the basis of those submissions.

3    Mr Singh submits that a costs certificate should be granted in respect of both the costs of the appeal he incurred and the costs of the appeal awarded against him. The Minister does not oppose the application for a costs certificate and submits that it is a matter for the Full Court as to whether the certificate should be granted.

4    Section 6 of the Costs Act provides, relevantly:

6    Costs certificates for respondents—Federal appeals

(1)     Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

…

(3)     The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the respondent in respect of:

(a)     the costs incurred by the respondent in relation to the appeal; and

(b)     any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.

5    Under s 3(1) of the Costs Act, a “Federal appeal” is defined to include an appeal to the Federal Court from a judgment of the FCFCOA (Div 2).

6    There is no presumption in favour of the grant of a costs certificate under s 6(1) of the Costs Act: Sims v Chong (No 2) [2015] FCAFC 163 at [7] (and the cases cited therein).

7    In Minister for Immigration and Border Protection v MZZMX (No 2) (2020) 385 ALR 283; [2020] FCAFC 214, the Full Court observed at [6] that the “discretion conferred by s 6(1) is a broad one”, and the relevant considerations include:

(a)    whether there are any matters which would disentitle the respondent to the issue of a certificate, such as the conduct of the respondent in respect of the litigation and any prejudice thereby occasioned to the appellant;

(b)    whether the respondent is an individual or a well-resourced company or government entity;

(c)    whether the decision on the appeal was significant beyond the particular case and had wider importance or relevance to the administration of the Migration Act 1958 (Cth);

(d)    whether it would have been unreasonable or unrealistic to expect the respondent to have undertaken the burden of the appeal without legal representation; and

(e)    whether the existence of a debt to the Commonwealth may provide a basis for refusing the grant of visas other than a protection visa pursuant to Sch 4, item 4004 of the Migration Regulations 1994 (Cth).

(Citations omitted.)

8    Mr Singh submits that the decision on appeal has significance beyond the present case and has wider importance for the administration of the Migration Act 1958 (Cth). He submits that he has not engaged in any conduct that would disentitle him from being granted a costs certificate.

9    The Minister’s appeal succeeded on the basis that the primary judge misconstrued cl 820.211(2)(d)(ii) of Sch 2 to the Migration Regulations 1994 (Cth). The Administrative Appeals Tribunal (Tribunal) had affirmed a refusal to grant Mr Singh’s visa application on the ground that he did not meet the requirements specified in cl 820.211(2)(d)(ii) of Sch 2 to the Migration Regulations, namely that the applicant must, “satisfy Schedule 3 criteria 3001, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria”. The Tribunal found that Mr Singh did not meet Criterion 3001 and there were no compelling reasons for not applying that Criterion. The Tribunal considered it unnecessary to go on to determine whether Mr Singh also failed to meet Criterion 3003 or Criterion 3004.

10    The primary judge held that cl 820.211(2)(d)(ii) requires that a decision-maker consider each of Criteria 3001, 3003 and 3004 in Sch 3 when determining whether there are “compelling reasons for not applying those criteria” and consequently quashed the Tribunal’s decision.

11    However, the Full Court held that what a decision-maker must consider depends upon the representations or submissions advanced by the visa applicant as to why they contend there are “compelling reasons”, and that, contrary to the primary judge’s opinion, there is no general or prescriptive obligation to consider all of the Criteria when assessing whether there are compelling reasons not to apply another of them. The Full Court upheld the appeal and set aside the orders of the primary judge.

12    A Notice of Contention was filed on behalf of Mr Singh which contended, first, that cl 820.211(2)(d)(ii) is invalid and, secondly, that the primary judge erred in holding the Tribunal’s decision was not affected by jurisdictional error by reason of its having based the decision on a finding that lacked any evidentiary foundation. Although the Full Court rejected both grounds of the Notice of Contention, each was reasonably arguable.

13    The appeal was a “Federal appeal” and the Minister succeeded on a question of law concerning the construction of cl 820.211(2)(d)(ii) of the Migration Regulations. Accordingly, the threshold criteria in s 6(1) of the Costs Act are satisfied.

14    The remaining issue is whether the discretion to grant a costs certificate should be exercised in favour of Mr Singh. Mr Singh’s submission that the Full Court’s judgment has implications for decision-making and the administration of the Migration Act beyond his own case should be accepted. His submission that there are no matters disentitling him to a costs certificate should also be accepted. Another relevant factor is that the existence of a debt owed to the Commonwealth may affect certain kinds of visa applications that might be made by Mr Singh in the future: see Sch 4, Item 4004 of the Migration Regulations; Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102 at [4]. It is appropriate to exercise the Court’s discretion in favour of granting Mr Singh a costs certificate.

15    Accordingly, the Court will order that Mr Singh be granted a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Costs Act to Mr Singh. The payment will be in respect of (a) the costs incurred by Mr Singh in relation to the appeal; and (b) the costs incurred by the Minister in relation to the appeal required to be paid by Mr Singh pursuant to Order 4 of the Orders made on 13 April 2026.

Associate:    

Dated:    14 July 2026