Miglani v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 98
•6 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Miglani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 98
File number(s): SYG 1332 of 2023
SYG 1262 of 2023Judgment of: JUDGE D HUMPHREYS Date of judgment: 6 February 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Summary dismissal – payment of application fees – whether jurisdictional error is made out Legislation: Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 6 February 2024 Date of hearing: 6 February 2024 Place: Parramatta Solicitor for the Applicant: Applicant appearing in person Solicitor for the Respondents: Mr Terrell (Australian Government Solicitor) ORDERS
SYG 1332 of 2023
SYG 1262 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUNNY MIGLANI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
6 FEBRUARY 2024
THE COURT ORDERS THAT:
1.This application be dismissed in accordance with rule 13.06 (1)(c) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth).
2.The applicant is to pay the first respondent’s costs for both matters in the amount of $7,630.00.
THE COURT NOTES THAT:
3. The applicant removed himself from the Court prior to the hearing.
4. A copy of the written reasons for judgment will be provided to the applicant.
5. The applicant may apply for a re-instatement of the application.
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).
REASONS FOR JUDGMENT
(As revised from the transcript)JUDGE D HUMPHREYS
INTRODUCTION
Mr Miglani is a citizen of India. On 1 September 2020, he applied for a Temporary Graduate (Class BC) Subclass 485 visa (“visa”).
Following a request for information relating to his criminal history in 2022, the applicant provided a National Police Certificate indicating that they have been convicted on two separate occasions. The first was in Melbourne County Court on 13 October 2021 where he was convicted of two counts of sexual assault and one count of false imprisonment. The applicant was sentenced to a community correction order that will expire on 12 April 2024 to perform 200 hours of community work.
At Horsham Magistrates’ Court on 9 July 2022 the applicant was convicted of failing to report location of a child contact (one count); failing to report employment details, (three counts); and failing to report internet usernames, (five counts). The applicant was sentenced to one-months imprisonment.
On 2 December 2022 a charge of contravening a community correction order was found to be proven but dismissed at the Melbourne County Court.
On 1 June 2023, the applicant was advised that he had been refused his visa as the delegate determined that the applicant did not meet public interest criteria 4001 due to his criminal convictions.
The applicant then sought merits review at the Administrative Appeals Tribunal (“the Tribunal”).
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The applicant lodged multiple review applications to the Tribunal on 13 June 2023 in relation to the same matter.
A previous application was lodged on 6 June 2023 which used the wrong form. In both cases, no fee or the incorrect fee was paid by the applicant. The Court believes that a nominal amount of $100.00 was paid at one point in time in relation to one matter.
The Tribunal noted that they have written to the applicant twice, advising that a reduced fee of 50 per cent was payable and that an application for a reduced fee needed to be completed and lodged by 13 June 2023. No application form or fee was received.
On 14 June 2023, an Officer of the Tribunal wrote to the applicant inviting him to comment on the view that his application was invalid, in that he had not paid the application fee before the expiration date of the application.
On 25 June 2023, the applicant responded with a completed fee reduction application and a copy of bank accounts but as the application period had expired, the application could not be valid if the fee reduction request was granted.
The Tribunal determined it did not have jurisdiction in the matters because under the relevant regulations the prescribed lodgement fee needed to be paid within the prescribed time period. As no fee had been paid, the Tribunal correctly determined, in my view, that it had no jurisdiction and accordingly dismissed the matters.
THE APPLICATION FOR JUDICIAL REVIERW
The applicant has now made two Applications to this Court seeking judicial review of both Tribunals’ decisions. The Applications are being heard together. The Court notes that the Application sought an order that the delegate’s decision be quashed. That was in file SYG1332/2023.
The Court has no jurisdiction in respect of the delegate’s decision because that is a primary decision and the provisions of s 476 of the Migration Act 1958 (Cth) (“the Act”) apply. The Court only has jurisdiction in relation to the Tribunal decisions.
The applicant also sought a referral for Pro-Bono legal assistance. The precise grounds for the application are set out in paragraph 17 to 13 of the Application. They allege, inter alia, jurisdictional error, legal unreasonableness, procedural unfairness, that the decision was unreasonable or illogical. However, no particulars are provided in support of these grounds.
The second file, SYG1262/2023, makes similar claims but also includes, without the particulars, grounds of irrationality and of reliance on an irrelevant matter or a separate matter.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court initially via video conference, noting that the applicant is in immigration detention within Melbourne. This matter was allocated to me because of the necessity to ensure that the applicant’s matter was dealt with expeditiously because he is immigration detention.
The Court is satisfied that the applicant is in possession of a copy of the relevant Court Books and that the first respondent’s written submissions were sent to him for his perusal.
At the commencement of the hearing or prior to me coming onto the bench, the Court attempted to ensure that the respondent’s written submissions were translated to him via the Interpreter who is present in Court. The Court is advised that the applicant became quite animated and argumentative and has then, in fact, removed himself from the video conference room and determined not to take any further part in the proceedings.
No medical evidence has been provided to the Court that indicates that the applicant is unfit to attend. The Court is satisfied that the applicant has made a conscious decision to absent himself from the Court hearing.
CONSIDERATION
The Court should consider whether or not it is appropriate that it grants an adjournment, first of all, for him to be provided with pro bono legal assistance and, second of all, to enable the hearing to proceed at a later date. Given the nature of the application, the Court is not satisfied that it is appropriate to adjourn it to enable the applicant to be represented on a pro bono basis. The compass of the particular matters before the Court is very, very narrow. It simply revolves around a question of whether or not the applicant has paid the prescribed fee, and whether as a matter of law, because he had not paid the prescribed fee, whether or not is within the jurisdiction of the Tribunal to hear the matter.
At a prima facie level and not having heard from the applicant, the Court is satisfied that there is a prima facie case that the Tribunal had no jurisdiction. The Court is not sure that any representation could change that position. It is either there is jurisdiction or there is not. In terms of whether or not the Court should adjourn the matter to enable the applicant to appear before it, the Court is not satisfied that the applicant, if an adjournment was granted, would not seek to further disrupt the hearing and, indeed, remove himself from the hearing. The Court is not satisfied that if an order was issued that the applicant be brought before the Court that that would be appropriate, even noting that he is in custody.
The Court has dealt with this matter on an expedited basis in order for the matter to be determined. In the Court’s view and on the application of the respondent, the Court proposes to deal with this matter pursuant to rule 13.06 (1) (c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) and dismiss the Application on the basis that the applicant has determined to absent himself from the Court hearing. The Court notes that in so doing, the applicant has the right to seek a reinstatement, should he choose to do so. If he does so, the Court will consider that reinstatement application on its merits when and if it is made.
CONCLUSION
Accordingly, the application is dismissed pursuant to r 13.06 (1)(c) of the Rules.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the extempore Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 8 February 2024
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