EJZ19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 688
•14 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJZ19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 688
File number(s): MLG 3858 of 2019 Judgment of: JUDGE GERRARD Date of judgment: 14 May 2025 Catchwords: MIGRATION – Protection visa – application for extension of time for judicial review of decision of the Administrative Appeals Tribunal – where applicant had previously sought review of Tribunal’s decision – where applicant failed to disclose previous judicial review proceedings – failure to comply with s 486D – whether application incompetent – extension of time refused – application dismissed. Legislation: Migration Act 1958 (Cth) ss 486D, 486D(1) Cases cited: DCB17 v Minister for Immigration and Border Protection [2017] FCCA 3104
DZY17 v Minister for Home Affairs (2018) 267 FCR 673
NLJV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 844
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 6 May 2025 Date of hearing: 14 May 2025 Place: Adelaide Applicant: Self-represented with the assistance of a Malay interpreter Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3858 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EJZ19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
14 MAY 2025
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE GERRARD:
In this matter, the applicant seeks an extension of time to seek judicial review of a decision of the second respondent (the Tribunal) dated 27 June 2017, affirming a decision of a delegate of the first respondent (the Minister) to refuse to grant the applicant a protection visa.
The Court has determined that the application is incompetent and must be dismissed. The following are the Court’s ex tempore reasons for judgment which the Court reserves the right to edit or amend prior to any necessary written publication.
The following background to this is derived from material in the Court Book (CB) and from the affidavit of Tareena Martin (the Martin affidavit) affirmed and filed on 20 May 2022.
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia on 28 April 2016 as the holder of an Electronic Travel Authority (CB 56).
On 22 July 2016, the applicant lodged an application for a Protection (Class XA) (subclass 866) visa (the visa) (CB 1-37).
That application was refused by a delegate on 22 December 2016 (CB 56-66).
On 28 December 2016, the applicant sought review of the delegate’s decision in the Tribunal (CB 67-72).
On 27 June 2017, the Tribunal affirmed the decision not to grant the applicant a protection visa (CB 85-91).
On 11 July 2017, the applicant sought judicial review of the Tribunal’s decision in proceeding number ADG281/2017 (Annexure TIM1 to the Martin affidavit).
That application was listed for a first mention date on 18 August 2017. The applicant failed to attend the first mention date and his application was dismissed for non-attendance by a Registrar on the same date.
On 12 September 2017, the applicant filed an application in a case seeking to reinstate his application. The application for reinstatement was heard before Judge Heffernan on 25 September 2017.
Judge Heffernan dismissed the application in a case in DCB17 v Minister for Immigration and Border Protection [2017] FCCA 3104 (DCB17) (Annexure TIM2 to the Martin affidavit). At [11]-[13] of that decision, Judge Heffernan stated:
I am satisfied that if I reinstated the proceedings the first respondent would be unlikely to experience any prejudice. However, I am not satisfied that the applicant has provided a reasonable explanation for failing to attend at Court on 18 August 2017. Further, having considered the grounds of application, I am not satisfied that that application establishes any ground alleging jurisdictional error on the part of the Tribunal. The applicant’s application appears to be a very strong disagreement with the conclusion reached by the Tribunal.
Whilst the categories of jurisdictional error are not confined, they do not permit this court to undertake a fact finding function or a merits based review.
I am not satisfied that the applicant has a reasonable prospect of success on his substantive application. I am not satisfied that a substantial injustice would occur by my refusing to reinstate the proceedings.
There is no material before the Court that indicates that the applicant sought leave to appeal from the decision of Judge Heffernan in DCB17.
APPLICATION TO THIS COURT
On 7 November 2019, the applicant filed the application which is the subject of these proceedings. That application states that the applicant seeks an extension of time to seek judicial review of a Tribunal decision dated 27 June 2017. In an accompanying affidavit sworn by the applicant on 7 November 2019, the applicant attaches a copy of the Tribunal decision. It is quite clear that this is the same decision as the Tribunal decision which was the subject of DCB17.
Importantly, the applicant has struck through the section of the application entitled “Other Court Proceedings” and handwritten “NIL” (set out below):
As can be seen, that section of the application states “This section must be completed 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”.
There is no ambiguity in this document in respect of the requirement to complete this section of the application, nor is there any ambiguity in the applicant’s response that he had no previous court proceedings which had sought review of the Tribunal’s decision.
On 21 November 2019, the Minister filed a Response which opposed the application for a number of reasons including that:
The applicant has not disclosed his other judicial review proceedings in accordance with s 486D(1) of the Migration Act 1958. The applicant has instituted other judicial review proceedings in relation to the decision that is the subject of the current application. All previous applications have been dismissed (DCB17 v Minister for Immigration and Border Protection [2017] FCCA 3104).
On 22 April 2025, this matter was listed for callover before Registrar Cummings. The orders which emanated from that callover included the following notation:
THE COURT NOTES THAT in today’s hearing the applicant admitted that this is his second application for judicial review, and that he did not disclose the existence of his first court case in the current application for judicial review.
THE CONSEQUENCES OF NON-COMPLIANCE WITH SECTION 486D
It is convenient at this point to set out the relevant parts of section 486D of the Migration Act 1958 (Cth) (the Act):
486D 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.
…
(5)In this section:
judicial review proceeding, in relation to a tribunal decision, means:
(a)a proceeding in the Federal Circuit Court in relation to the tribunal decision; or
(b)a proceeding in the Federal Court seeking exercise of the court’s original jurisdiction in relation to the tribunal decision; or
(c)a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision.
tribunal decision means a privative clause decision, or purported privative clause decision, made on review:
(a) by the Tribunal under Part 5 or 7 or section 500; or
(b) by the Immigration Assessment Authority under Part 7AA.
The disclosure obligations of s 486D were explained by the Full Court of the Federal Court of Australia in DZY17 v Minister for Home Affairs (2018) 267 FCR 673 at [33]-[34] as follows (emphasis in original):
The disclosure requirements imposed by ss 486D(1), (2) and (3) operate at the time when a person is commencing a proceeding in a relevant Court. The required disclosure is to the Court. Moreover, the subject of the disclosure requirement is “any judicial review proceeding already brought by the person in that or any other court in relation to” the challenged decision. Thus, in their very terms, the focus of the disclosure requirement in each of the three relevant provisions in s 486D is on the question whether the person has already brought a judicial review proceeding in relation to the challenged tribunal decision. In other words, it is the fact of having brought an earlier judicial review proceeding which much be disclosed, and not the outcome of any such proceeding. Having made such a disclosure, it would then be a matter for the second judicial review Court to determine whether or not the bringing of the later judicial review proceeding constitutes, for example, an abuse of process by reference to the bringing of the earlier proceeding. The disclosure requirements therefore operate to facilitate effective case management by the second judicial review Court.
The text of s 486D does not indicate that the disclosure obligation only arises where a previous judicial review application brought by the person has been finalised or determined, whether that has occurred as a result of the person having filed a notice of discontinuance or the application having been heard and determined by the relevant Court. Such matters might, however, be relevant to a determination as to whether or not the bringing of the second judicial review application is, for example, an abuse of process.
More recently, Justice Katzmann had cause to consider the consequences of failing to comply with the s 486D disclosure obligations in NLJV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 844 at [11]-[14] (NLJV) as follows:
The Minister filed an objection to the competency of the application based on the failure to disclose the earlier judicial review application when the present application was filed. The Minister also submitted that the application was an abuse of process such that, even if it were competent, the Court should exercise the power under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and summarily dismiss the application.
The Minister’s objection to competency is well founded. I have no alternative but to dismiss the application. It is not to the point that the grounds of review the applicant now raises were not raised in the original application.
Section 486D(2) of the Actprovides that “a person must not commence a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction 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” (emphasis added). The applicant’s draft application was completed using the form prescribed by r 31.22(1) of the Federal Court Rules 2011. That form draws attention to s 486D, requires an applicant to indicate whether he has previously brought a judicial review proceeding, and if so, to provide particulars of the title, file number and date of each proceeding, and the court in which it was brought.
Disclosure of other judicial proceedings upon commencement of a proceeding in relation to a tribunal decision is a jurisdictional precondition to the making of the present application. See TCWY v Minister for Immigration and Border Protection [2018] FCA 804 at [29]–[33] (Perry J); DZY17 v Minister for Home Affairs [2018] FCAFC 196; [2018] 267 FCR 673 at [28]–[29] (Besanko, Griffiths and White JJ). In other words, the Court has no jurisdiction to entertain the application if the precondition is not satisfied. That means that the applicant’s failure to disclose the earlier proceeding in his originating application or his accompanying affidavit is fatal. For this reason, the application is not competent.
It is quite clear that, in accordance with s 486D(1), the applicant was required to disclose the existence of his previous proceedings in respect of the Tribunal’s decision of 27 June 2017 in any application to this Court. As set out in NLJV, such disclosure was a jurisdictional precondition to the making of this application.
As submitted by the Minister, there is no discretion to waive the requirements of s 486D.
At the hearing of this matter today, following an explanation of the requirements of s 486D by both the Court and counsel for the Minister, the applicant was invited to make submissions in respect of this issue but did not do so.
As set out above, there was no ambiguity in the application made by the applicant. It is not the case that the applicant overlooked the section. It was clearly struck out by the applicant with a positive and clear notation that there were no previous applications.
In any event, s 486D (and the authorities referred to above which consider the application of s 486D) make it very clear that this Court has no jurisdiction to consider the application if the precondition of disclosing previous applications is not satisfied.
The consequence of the applicant’s failure to disclose the earlier proceeding is that the application is incompetent. As a consequence, even if the Court made an order to extend the time to make an application for judicial review, the application would inevitably be dismissed. Clearly, there are no reasonable prospects of the applicant succeeding on the basis of this application.
Accordingly, the Court must dismiss the application.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 14 May 2025
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