Luthra v Minister for Home Affairs

[2019] FCCA 2671

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUTHRA v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2671

Catchwords:
MIGRATION – Applicant had previously lodged a judicial review appeal in the Federal Circuit Court in respect of the same Administrative Appeal Tribunal decision – application dismissed pursuant to s 486D(1) of the Migration Act 1958 (Cth).

Legislation:

Migration Act 1958 (Cth), s.486D(1).

Applicant: PRABHDEEP SINGH LUTHRA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1657 of 2018

Judgment of: Judge McNab

Hearing date: 13 September 2019

Date of Last Submission: 13 September 2019

Delivered at: Perth

Delivered on: 13 September 2019

REPRESENTATION

Counsel for the Applicant: In Person (by Phone Link)

Counsel for the Respondent: Mr Creedon (by Phone Link)

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The proceeding be dismissed as:

   (a)the application is incompetent by reason of s.486D(1) of the Migration Act 1958 (Cth); and

   (b)the applicant has no reasonable prospects of successfully prosecuting the proceeding pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.00.

3. The time for lodging any appeal be extended until 14 days after the publication of written Reasons.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

MLG 1657 of 2018

PRABHDEEP SINGH LUTHRA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

1. The Application in a Case filed on 1 April 2019 by the First Respondent should be upheld. By that application, the First Respondent seeks orders that:

   1. That the proceeding be dismissed because:

   1.1 the application is incompetent by reason of s 486D(1) of the Migration Act 1958 (Cth); and

   1.2 the applicant has no reasonable prospects of successfully prosecuting the proceeding pursuant to r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth).

   2. The applicant pay the costs of the first respondent.

2. Section 486D(1) provides that:

   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. By an affidavit affirmed by Kelly Rachel McInnis on 1 April 2019 on behalf of the first respondent, disclosed that on 22 May 2018 Hartnett J, as she then was, dismissed an application for judicial review brought by the applicant in respect of a decision of the Tribunal made on 14 June 2016.

4. On 12 June 2018, the applicant filed this application seeking judicial review of the same decision of the Tribunal, and did so without disclosing that matter as required pursuant to section 486D(1).

5. In those circumstances, the application is incompetent and must be dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 23 September 2019