AQQ16 v Minister for Immigration

[2016] FCCA 2736

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQQ16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2736

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – application is incompetent for non-compliance with s.486D of Migration Act 1958.

Legislation:
Migration Act 1958, s.486D

Cases cited:
BZZ15 v Minister for Immigration & Anor [2016] FCCA 1878
Joshi v Minister for Immigration & Anor [2016] FCCA 2168
SZVXP v Minister for Immigration & Anor [2016] FCCA 1287

Applicant: AQQ16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 590 of 2016

Judgment of: Judge Riley

Hearing date: 18 October 2016

Date of last submission: 18 October 2016

Delivered at: Melbourne

Delivered on: 18 October 2016

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Andrew P Yuile

Solicitors for the first respondent: DLA Piper Australia

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: DLA Piper Australia

ORDERS

1. The application filed on 23 March 2016 be dismissed as incompetent.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,606.

NOTATION BY THE COURT

The applicant did not comply with s.486D of the Migration Act 1958.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 590 of 2016

AQQ16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an objection to competency in the context of an application to review a decision of the Refugee Review Tribunal.  The application was filed in this court on 23 March 2016. 

2. One of the questions in the application form concerns other court proceedings.  It is on page 4 of the application.  It says:

   Other Court Proceedings (complete if the applicant has made a previous application or applications to a court to review the decision – see section 486D of the Migration Act 1958.)

3. It then says:

   Person or persons who made each previous application: …………

   Court or courts to which each application was made: ……………

   Commencement date of each previous application or applications: ……………………………………………………………..

   File number of each application: ……………………………………..

   Outcome of each application: …………………………………………

4. The application has the word “No” written in handwriting in the space next to the words “Person or persons who made each previous application”.  The applicant told the court that he wrote “No” in the space provided next to “Person or persons who made each previous application”.  He otherwise left blank each space provided for an answer.

5. Section 486D(1), of the Migration Act 1958 provides as follows:

   A person must not commence a proceeding in the Federal Circuit Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.

6. The Minister told the court that the applicant had, in fact, filed a previous application to this court.  That was identified as proceeding MLG1742 of 2014.  The court showed the applicant a copy of the application filed in that proceeding on 26 August 2014.  He confirmed that he had, in fact, filed that application on that date.  He also confirmed that he had filed a notice of discontinuance in respect of that application on 3 November 2014.

7. The Minister referred the court to a number of decisions of this court that state that where a person has failed to disclose in the application to this court any previous application as required by s.486D of the Act then his or her application is incompetent. Those decisions include BZZ15 v Minister for Immigration & Anor [2016] FCCA 1878, SZVXP v Minister for Immigration & Anor [2016] FCCA 1287, and Joshi v Minister for Immigration & Anor [2016] FCCA 2168. I am obliged to follow those decisions unless I consider that they are plainly wrong. I do not consider that they are plainly wrong and therefore I do follow them.

8. The Minister drew the court’s attention to Ground 1 of the extension of time section of the application filed on 23 March 2016.  It says:

   I was unable to proceed with the federal review application earlier because I was under severe financial hardship.

9. The Minister suggested that that might have alluded to an earlier application.  However, it seems to me that the natural reading of that sentence is simply that the applicant was not able to commence review proceedings any earlier because he was under severe financial hardship.  I do not interpret that statement as a disclosure of any earlier proceeding in any shape or form.

10. I should also add that, in Joshi at [24], there was reference to a partial disclosure of an earlier proceeding in the grounds of the application for an extension of time. In that case, the applicant said:

    I withdrew my earlier appeal due to lack of information.

11. That statement went much further than the statement in the present application in that it did actually refer to an earlier appeal.  In any event, in Joshi, the applicant also said in an affidavit:

    I was not given enough opportunity to present my circumstances one of my friend mislead me, which results I discontinue previous applicat. (errors in original)

12. Those statements do indicate that there was a previous appeal or previous application to the court.  However, the court in Joshi considered that there was not the required level of specificity in the disclosure of the earlier proceeding, and dismissed the application as incompetent.

13. There is nothing comparable in the present case.  The applicant’s affidavit in support of his current application simply says:

    1.I AM RESPONSIBLE FOR ALL INFORMATION GIVEN.

    2.I STRONGLY BELEIVE THAT ALL THE GIVEN DETAILS ARE TRUE. (errors in original)

14. There was nothing else in the application that in any way alludes to any earlier application.  All in all, it seems to me that, following the other decisions of this court, there is no option but to conclude that the application is incompetent.

15. In his oral submissions today, the applicant, who was unrepresented, simply said that he is suffering financial hardship.  He said that his mother lives alone in India but, if given time, she would sell her land in India and he would then be able to get a lawyer.  If that was an application for an adjournment of this proceeding, I decline to grant it.  There does not seem to me to be any realistic prospect of the applicant being able to get a lawyer in the reasonably foreseeable future.  Moreover, it does not seem to me that there is any reasonable prospect of a lawyer being able to assist the applicant to overcome the incompetence argument put by the Minister.

16. The application filed on 23 March 2016 will be dismissed as incompetent.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     24 October 2016