PAL v Minister for Immigration

[2017] FCCA 906

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAL v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 906

Catchwords:
MIGRATION – Application for judicial review – application incompetent – no matters of principle – application dismissed.

Legislation:

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

Cases cited:

Uddin v Minister for Immigration & Anor [2017] FCCA 500

Singh v Minister for Immigration & Anor [2017] FCCA 522

Applicant: PRIT PAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2431 of 2016

Judgment of: Judge Riethmuller

Hearing date: 12 April 2017

Date of Last Submission: 12 April 2017

Delivered at: Melbourne

Delivered on: 12 April 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1,443.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2431 of 2016

PRIT PAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. On 13 July 2015, the applicant applied for a student visa.  On

   
   

   23 October of that year, a delegate refused the application.  This decision was the subject of a review application to the Administrative Appeals Tribunal (“the Tribunal”).  On 9 May 2016, the Tribunal affirmed the decision of the delegate and refused the applicant’s application for review.

2. Following the Tribunal’s decision, on 19 May 2016, the applicant sought judicial review in the Federal Circuit Court of Australia. However, the applicant did not appear at court on the first return date of 26 October 2016, at which point the application was dismissed as a result of his non-appearance at the directions hearing.

3. There appears to be a significant question about whether or not the Registrars have delegated powers to dismiss proceedings, as occurred in this case on 26 October 2016. This issue can be seen in the differences in decisions made in Uddin v Minister for Immigration & Anor [2017] FCCA 500 and Singh v Minister for Immigration & Anor [2017] FCCA 522. I understand that a further decision in the case involving Applicant BJC16 is now pending on appeal to the Federal Court of Australia.

4. Whilst this is a significant issue, it is not one that I necessarily have to determine today. What I am asked to determine is whether or not the current (more recent) application is invalid and not whether or not the previous application remains pending.  In these circumstances, particularly given that there are two conflicting judgments of this court already and an appeal pending, it seems to me that it would be inappropriate to add obiter dictum comment to this issue.

5. On 8 November 2016, the applicant lodged the present (more recent) judicial review application seeking an extension of time to bring judicial review proceedings with respect to the decision of the Tribunal. In this application, the applicant did not disclose that he had brought the previous proceedings in this court with respect to the same decision. Section 486D(1) of the Migration Act 1958 provides:

   (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.

6. In these circumstances, it seems clear that the present (more recent) application was not able to be brought and that this application is incompetent or a nullity.  In these circumstances, the application must be struck out, as it is brought in breach of the Act. 

7. Whether or not the applicant has open to him other remedies with respect to the previous proceedings, or seeks to pursue an application if brought in accordance with s.486D, are matters for the applicant.  It is not appropriate for me to consider the positives and negatives that might flow with respect to the various courses that may be open to him. 

8. In the circumstances, I therefore formally strike out the current application.

   [Further argument ensued]

9. In this matter, the Minister has been entirely successful.  The application was incompetent.  It seems to me that it falls within Item 1, Part 3 of Division 1 of the scale.  I will order costs accordingly.

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

Date: 5 May 2017