Avaiya v Minister for Immigration & Border Protection

[2014] FCCA 268

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVAIYA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 268

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE AND PROCEDURE – Whether applicant disclosed prior proceedings seeking judicial review of a decision of the Migration Review Tribunal – whether applicant complied with section 476D of the Migration Act 1959 – application incompetent.

Legislation: 

Migration Act 1958 (Cth) s.486D

Cases cited:
MZXPI v Minister for Immigration & Anor [2010] FMCA 1296
SZKUT v Minister for Immigration & Anor [2010] FMCA 241

Applicant: MUKESHKUMAR PARSHOTTAM AVAIYA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent MIGRATION REVIEW TRIBUNAL

File Number: SYG 2782 of 2013

Judgment of: Judge Emmett

Hearing date: 18 February 2014

Date of Last Submission: 18 February 2014

Delivered at: Sydney

Delivered on: 18 February 2014

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondent: Ms Louise Bunchanan
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2782 of 2013

MUKESHKUMAR PARSHOTTAM AVAIYA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By way of application filed on 11 November 2013, the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the MRT”), dated 2 April 2013. 

2. The first respondent contends that the application is incompetent, pursuant to s.486D of the Migration Act 1959 (“the Act”). Section 486D(1) of the Act is in the following terms:

   “Disclosing other judicial review proceedings

   (1)  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.”

3. On 1 May 2013, the applicant filed an application for judicial review of a decision of the MRT, dated 2 April 2013 (SYG 908 of 2013).

4. On 16 October 2013, the application filed on 1 May 2013 was discontinued by the applicant.

5. There is no evidence before this Court of any disclosure by the applicant of this prior judicial review proceeding already brought by him in relation to the decision of the MRT dated 2 April 2013.

6. In the circumstances, there has been no compliance with s.486D(1) of the Act in bringing the present application.

7. Accordingly, the proceeding before this Court commenced by way of application filed on 11 November 2013, is incompetent (see MZXPI v Minister for Immigration & Anor [2010] FMCA 1296 and SZKUT v Minister for Immigration & Anor [2010] FMCA 241).

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  20 February 2014