Pushpinder v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 663
Federal Circuit and Family Court of Australia
(DIVISION 2)
Pushpinder v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 663
File number(s): MLG 1487 of 2014 Judgment of: JUDGE VASTA Date of judgment: 5 August 2022 Catchwords: MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 5 August 2022 Date of hearing: 5 August 2022 Place: Brisbane Counsel for the Applicant: The Applicant appearing on his own behalf Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 1487 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GAUTAM PUSHPINDER
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
5 AUGUST 2022
THE COURT ORDERS THAT:
1.The application filed on 6 June 2022 as amended on 24 June 2022 be dismissed.
2.The Applicant pay the First Respondent’s costs of an incidental to the application fixed in the sum of $2,000.
3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
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
(Ex tempore)JUDGE VASTA
On 23 July 2014, the Applicant, Gautam Pushpinder filed an application (MLG1487/2014) in this Court. The orders that he sought were that the decision of the Tribunal or Minister be quashed and a writ of mandamus directed to the Tribunal or Minister requiring them to determine the Applicant’s application according to law.
On 31 March 2016, the Applicant filed a notice of discontinuance in this Court. He wrote in the notice that he was discontinuing migration action MLG1487/2014 and re-iterated that the application for the orders for the quashing of the Tribunal decision and the issuing of a writ of mandamus, are the orders which he sought to discontinue. He signed the document on 29 March 2016, and, as I say, it was filed on 31 March 2016.
On 17 January 2017, Registrar Carparelli ordered that the Applicant pay the First Respondent’s costs of the matter that was fixed in the sum of $4,778.
On 21 June 2022, the Applicant filed an application to reinstate and reopen the discontinued matter.
The fact of a discontinuance means that an application is at an end. It brings to the close any matters to which an Applicant who filed an application wished to bring to the Court. Now, of course, the matter may not be closed from there because once an Applicant files an application, a Respondent can file a response. If the Respondent wished other orders to be made, then those orders can still occur.
The most common scenario in this Court, for such a set of circumstances such as those to arise, are in family matters where it is that a parent files an application, for example, wanting time with the children or equal shared parental responsibility, and the other parent files a response, for example, that they want sole parental responsibility and for the children to have no time with the other parent. The first parent may then discontinue the matter. That means that the prosecution of the matter no longer takes place, but the matter is still before the Court, and it is a matter then for the Court as to whether it will make the orders that the Respondent wished the Court to make.
So the notice of discontinuance is a very important document, and that is why it must be signed by the litigant who files it.
In this case, the Applicant had been the subject of an adverse decision of the delegate who had refused to give him a student visa, and that decision was affirmed by the Administrative Appeals Tribunal (“the AAT/Tribunal”). As the Applicant noted in the notice of discontinuance, he then filed an application to this Court for this Court to review the decision of the AAT.
What the Applicant has said in his affidavit is that he has been the subject of unscrupulous and fraudulent persons who have carried themselves as lawyers and/or migration agents. They had the Applicant pay a significant sum of money simply to file the application in this Court and those persons made it out as though the Applicant was filing the matter himself and was not represented.
Once a first court date was assigned, the Applicant went to see his lawyers and they told him that it would cost something in the order of a five-figure sum for them to represent him. He baulked at that, but was coming to an arrangement where he would be still able to go ahead with his matter. He said, though, that he lost total faith in such agents. He could no longer trust any of them. He found that they were just keen to grab his money.
The Applicant sought the help of an NGO to come to the process of making consent orders with the AGS. The Court book was compiled. The Applicant said, by this time, he had paid almost $10,000. He said that he had been the subject of fraudulent activity by a previous group of persons who held themselves out to be migration agents.
The final hearing was approaching. The Applicant had no representation. The Applicant said he felt, in effect, lost, confused and totally bereft of any way in which he could properly put a case to the Court. He wrote to the Court asking for an adjournment. The application for adjournment was denied. The matter was to proceed when it was listed.
The Applicant said, at paragraph 52 of his affidavit in these proceedings, due to not being able to afford representation, lack of education, necessary skills and the misleading conduct of the immigration agents by not providing the estimated cost to run the case upfront and sudden news of the significant cost related to proceedings, led to the Applicant discontinuing the matter. Further, the Applicant was in grief and traumatised after losing his father earlier in 2016.
The Court file notes that the Applicant filed the notice of discontinuance, but it was about three days before the actual hearing. Such a notice therefore needed leave from the Court for it to be filed that close to the hearing day. The views of the Minister were sought. The Minister did not oppose the filing of the notice of discontinuance and Wilson J granted that leave and the notice of discontinuance was filed.
As I said before, that meant that the matters were at an end as far as the Applicant was concerned. The Minister, however, still wanted his costs of the matter because he had prepared the application. That application was still on foot, and that was the matter that was determined by Registrar Carparelli in February the following year.
The Applicant said that, in the intervening period between 2018 and 2022, he had been involved in 10 different legal proceedings: in the Magistrates Courts; before the Fair Work Commission; before VCAT; and, before the Supreme Court. Having been here on a student visa and having the student visa refused, the Applicant had a bridging visa that would continue until the resolution of the review application before this Court. Once the Applicant discontinued the application, the bridging visa would obviously cease.
The Applicant has told me today that he made an application for a protection visa. That protection visa was not granted by the delegate nor did the AAT allow him the protection visa and there is a judicial review process that was on foot. The Applicant tells me that he has now withdrawn that matter, but it would seem that the proceedings must still be on foot because he is still here in Australia under a bridging visa.
The Applicant claims that after being almost done with those 10 other legal appearances that, at paragraph 56 of his affidavit:
…on a sunny day, the Applicant was cleaning his closet before moving his house and came across the Court book provided by AGS Lawyers earlier in 2016 and decided to read it afresh and finally found the S & S Migration initially lodged application from 2011. Considering the letter of the Department of Immigration, only the TRA reference number was bogus, and thus the Applicant has been struck by PIC 4020 conditions.
57. Contrary to the position, the Applicant is of the view that the health assessment booking reference number… is also bogus and false as the applicant never received any advice to apply for a health assessment by the S & S Migration.
58. Moreover, the applicant is able to confirm that neither the applicant owns nor recognises the Rediffmail email address provided by S & S Migration…
59. The applicant qualification for the “Diploma in Hospitality” has also been forged by the S & S Migration as the applicant never studied or worked as a cook…
The applicant then writes at paragraph 61:
There appears to be no reasonable reason why the applicant would want to ruin his career despite the support being available from his father for a brighter future.
At paragraph 66, the applicant writes:
Therefore, the applicant sincerely requests this Honourable Court to reinstate [re-open] the matter in the interest of justice for the sake of vulnerable members of the society and grant the order sought in the applicant’s originated application for judicial review.
The problem for the Applicant is that it is not that simple. Whilst it may be that there is an inherent power for this Court to reinstate or revive an application that has been discontinued, it will only do so in the most grave of circumstances, where realistically the Applicant is, in effect, non est factum; that is, that the signature on his notice of discontinuance was procured by fraud and by a true misunderstanding of what it was that he was signing.
There is no evidence whatsoever that would back up such a claim that the Applicant was so bereft of intelligence and sense and understanding that he had no idea what he was signing. There is no evidence at all that the Applicant was induced by fraud, or by the tricks of someone else, to sign that a document.
There is simply no explanation as to why the Applicant has waited six years to try and bring this matter back. The Applicant knew that, in February 2017 when cost orders were made against him, the matter was before the Court so that the Registrar could make the order for costs against the Applicant.
The matter is at an end and it stays at an end.
There is nothing before this Court that would in any way show that the extraordinary circumstances, that must be present before the Court allows a revival of a discontinued claim, are present here. There is no independent evidence.
The Applicant says that he was touched by grief from his father. There is nothing from a psychiatrist or a psychologist to say that his grief was something that left him totally without the comprehension of what it was that he was doing. This was a conscious decision, albeit one that the man six years later regrets, but this Court simply does not deal with “buyer’s remorse”.
Once this matter was discontinued, the only way that the matter could come back before the Court was for the Applicant to file another application asking for an extension of time. That was not done. There is simply no reason for this Court to accede to the request made by the Applicant.
I dismiss the application filed on 21 June 2022 with costs in the sum of $2000. Obviously, I will have to now change the name of the Minister for this application it would seem as well, so I will do that.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 5 October 2022
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