Ji v Minister for Home Affairs

[2019] FCCA 3295

FEDERAL CIRCUIT COURT OF AUSTRALIA

JI v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3295

Catchwords:
MIGRATION – Student (Temporary) (class TU) Higher Education Sector (subclass 573) – repeat application – where applicant failed to attend hearing – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.486D

Migration Regulations 1994 (Cth), cls.573.223(1)(a) of Sch 2

Cases cited:

DZY17 v Minister for Home Affairs [2018] FCAFC 196
TCWY v Minister for Immigration and Border Protection [2018] FCA 804; 74 AAR 485

Applicant: GONGCHEN JI

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2297 of 2019

Judgment of: Judge Mercuri

Hearing date: 11 November 2019

Date of Last Submission: 11 November 2019

Delivered at: Melbourne

Delivered on: 11 November 2019

REPRESENTATION

Advocate for the applicant: None

Solicitors for the applicant: None

Advocate for the respondents: Ms Roeger

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The applicant’s application filed 18 July 2018 be dismissed.

2. The applicant pay the first respondent’s costs of the proceedings fixed in the sum of $3,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2297 of 2019

GONGCHEN JI

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is an application filed by the applicant on 18 July 2019 for an extension of time in relation to an application for judicial review of a decision of the Administrative Appeals Tribunal (“the tribunal”) made on 16 May 2018. 

2. The applicant did not attend this morning at court and was called outside of court shortly after the commencement of proceedings, but there was no response to the call. 

3. At that time, the representative of the first respondent brought to the court’s attention that there had been an issue with the notice of listing being sent to the incorrect email address for the applicant.  This issue was identified by the first respondent on or about 1 November 2019.[1]

   [1] Exhibit A.

4. It is clear from the emails contained within Exhibit B that the applicant was aware of today’s hearing date but was going to be overseas today and would not be able to attend. 

5. The first respondent submitted records which indicate the applicant remains onshore in Australia.[2]  An attempt was made by my associate to telephone the applicant on the mobile telephone number indicated by the applicant on his application.  There was no answer to that call.

   [2] Exhibit C.

6. In the circumstances, I determined that it was appropriate to proceed today.

7. The respondent seeks that the applicant’s application be dismissed on the grounds that it is incompetent. 

Procedural background

1. On 11 March 2016, the applicant applied for a student visa.

2. On 7 October 2016, a delegate of the Minister for Home Affairs refused to grant the applicant that visa on the basis the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student, and therefore did not satisfy clause 573.223(1)(a) of schedule 2 to the Migration Regulations 1994 (Cth).

3. The applicant subsequently lodged an application for review with the tribunal on 24 October 2016.

4. The tribunal then affirmed the delegate’s decision on 15 May 2018, providing written reasons for its decision on 15 June 2018.

5. The tribunal found that there was no evidence that the applicant was enrolled in, or had a current offer of enrolment in, any applicable course of study and therefore found that he did not meet the criteria for the grant of the visa.

6. On 23 May 2018, the applicant filed an application for judicial review of the tribunal’s decision (“the first application”) which was listed for a directions hearing on 24 July 2019.

7. On 4 July 2019, the applicant filed a notice of discontinuance discontinuing that application.

8. On 18 July 2019, the applicant then filed a second application, this time seeking an extension of time in which to seek judicial review of the tribunal decision (“the second application”), which is presently before the court.[3]

   [3] Applicant’s application filed 18 July 2019.

9. In the second application, the applicant did not:

   a)identify or indicate that he had filed the first application, notwithstanding that a specific question is asked on the application form about other court proceedings; or

   b)identify the fact that he had filed the first application under the grounds of application for an extension of time, nor under the grounds of application section.

10. The applicant also filed an affidavit in support of the second application and again made no reference in that affidavit to the fact that he had filed the first application.[4]

    [4] Affidavit of Gongchen Ji affirmed 17 July 2019 and filed 18 July 2019.

11. The respondent relies upon an affidavit affirmed by Ms Shauna Leigh Roeger annexed to which are various documents including the first application and the notice of discontinuance filed by the applicant.[5]

    [5] Affidavit of Shauna Leigh Roeger affirmed and filed 1 November 2019.

The first respondent’s position

1. The basis of the first respondent’s application for dismissal on the ground of incompetence is found in section 486D of the Migration Act 1958 (Cth) (“the Act”).

2. Section 486D(1) of the Act relevantly provides:

   A person must not commence a proceeding in the Federal Circuit Court in relation to a tribunal decision unless the person, when commencing the proceedings, 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. It is clear on the basis of the material filed in these proceedings that the applicant did not comply with section 486D(1) of the Act in his second application.

4. The first respondent submits that:

   a)the requirements of section 486D(1) of the Act imposes a jurisdictional precondition which must be met at the time that the proceeding is commenced and that the failure to do so renders the application for judicial review incompetent;

   b)the omission to make the relevant disclosure pursuant to section 486D of the Act cannot be cured by the filing of an amended application; and

   c)the court has no discretion to relieve an applicant of the requirement to make that disclosure when commencing the proceeding.

5. The first respondent refers to two decisions:

   a)a decision of Perry J of the Federal Court of Australia in TCWY v Minister for Immigration and Border Protection [2018] FCA 804; 74 AAR 485 (“TCWY”); and

   b)a decision of the Full Court of the Federal Court of Australia in DZY17 v Minister for Home Affairs [2018] FCAFC 196 (“DZY17”).

6. In DZY17, the Full Court, after referring to the decision of Perry J in TCWY and setting out in some detail the reasoning of Perry J at paragraph [28] of the Full Court’s decision, went on to adopt the reasoning of Perry J and noted that her Honour’s reasoning was clear and comprehensive and “plainly correct and applies equally to the proper construction of section 486D(1) of the Act.”

7. At paragraph [33] of DZY17, the Full Court went on to say:

   The disclosure requirements imposed by section 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 is each of the three relevant provisions – in each of the three relevant provisions in section 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 must be disclosed and not the outcome of any such proceeding.  It would then be a matter for the second judicial review court to determine whether or not the bringing of the latter 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.

8. The Full Court also went on to consider whether the decision in TCWY was distinguishable because, in TCWY, the first application was considered and dismissed by a court, whereas in DZY17, the applicant in that case had discontinued the first set of proceedings.

9. At paragraph [34], the Full Court relevantly stated:

   The text of section 486D does not indicate that the disclosure obligation only arises where a previous judicial review application brought by a 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.

10. Ultimately, the Full Court concluded in DZY17 that the reasoning in TCWY applied equally in circumstances where the applicant had discontinued the first set of proceedings. 

11. DZY17 is on all fours with the facts in this case, and I am bound by that decision.

Conclusion

1. In those circumstances, the first respondent’s application ought to be granted, and I dismiss the applicant’s application on the grounds that it is incompetent.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:  19 November 2019