Luthra v Minister for Immigration

[2020] FCCA 2945

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUTHRA v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2945

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – summary dismissal application – whether the application is incompetent – failure to disclose two previous judicial review applications.

Legislation:

Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, s.486D

Cases cited:

TCWY v Minister for Immigration & Border Protection (2018) 74 AAR 485; [2018] FCA 804

Applicant: PRABHDEEP SINGH LUTHRA

First Respondent: MINISTER FOR IMMIGRATION, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 3252 of 2019

Judgment of: Judge Riley

Hearing date: 27 October 2020

Date of Last Submission: 27 October 2020

Delivered at: Melbourne

Delivered on: 27 October 2020

REPRESENTATION

Advocate for the applicant In person

Solicitors for the applicant: None

Advocate for the first respondent Thomas Creedon

Advocate for the second respondent No appearance

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. Pursuant to r.13.10 of the Federal Circuit Court Rules 2001, the application filed on 26 September 2019 be dismissed.

2. The applicant pay the first respondent’s costs of the application fixed in the sum of $3,000.

AND THE COURT NOTES THAT:

The application filed on 26 September 2019 did not comply with s.486D of the Migration Act 1958 in that it did not disclose two previous applications in respect of the same decision of the Administrative Appeals Tribunal, being MLG1507/16 and MLG1657/18.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3252 of 2019

PRABHDEEP SINGH LUTHRA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)[1]

[1]     Oral reasons were provided at the hearing of the matter on Tuesday, 27 October 2020 at about 3:00pm. Chambers ordered a transcript of the reasons for judgment on Tuesday, 27 October 2020 at 3:24pm. Auscript provided the transcript of the reasons for judgment on Thursday, 29 October 2020 at 10:46am. The reasons for judgment were settled on 30 October 2020, and provided to the parties by email on the same day

1. This is an application for summary dismissal of a migration application. The application was filed on 26 September 2019. In that application, the applicant did not disclose, contrary to s.486D of the Migration Act 1958, that he had filed two previous applications in respect of the same decision by the Administrative Appeals Tribunal.

2. The relevant Tribunal decision was made on 14 June 2016. The applicant sought review of that decision by an application filed on 15 July 2016 in proceeding number MLG1507 of 2016. On 22 May 2018, Judge Hartnett, as her Honour then was, dismissed that application.

3. The applicant then filed a second judicial review application in respect of the same Tribunal decision on 12 June 2018. That application became proceeding number MLG1657 of 2018. On 13 September 2019, Judge McNab dismissed the second judicial review application on the basis that the applicant had not disclosed in that application the previous application that had been determined by Judge Hartnett.

4. Notwithstanding that dismissal, the applicant has filed yet another application in respect of the same Tribunal decision and again failed to disclose the two previous applications that he had brought in respect of the original Tribunal decision.

5. Applying the Federal Court authority of TCWY v Minister for Immigration & Border Protection (2018) 74 AAR 485; [2018] FCA 804, particularly at paragraphs 24 to 34, the present application is not competent. It is appropriate that it be summarily dismissed.

6. For completeness, I note that, at the hearing before me, the applicant acknowledged the accuracy of the basic facts that I have outlined above. They were set out in the affidavit of Thomas Patrick Creedon sworn on 31 August 2020.

7. The applicant said that his last hearing before this court, being the one before Judge McNab, was conducted by telephone, as this hearing was today. The applicant had technical difficulties that prevented him joining the Microsoft Teams hearing in the usual way today. The applicant said that he wished to call witnesses and prove his case and he had not been given a proper hearing before me today or before Judge McNab. However, the fact is that this was a summary dismissal hearing. Witnesses are not called at such hearings. Moreover, because of the noncompliance with s.486D of the Act, there would be no opportunity for the applicant to call witnesses, regardless of whether the hearing was conducted by telephone.

8. Even if we were not dealing with an application under s.486D, as a general rule it is inappropriate in reviews of Tribunal decisions for witnesses to be called. It is only exceptionally that such witnesses could be relevant to any issue in dispute. There is nothing in the present case to suggest that it would have been appropriate to call witnesses.

9. All in all, for the reasons that I have outlined, the application filed on 26 September 2019 will be dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 30 October 2020