SINGH v Minister for Immigration

[2015] FCCA 2033

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2033

Catchwords:
MIGRATION – Application incompetent pursuant to s.486D of the Act – application dismissed.

Legislation:

Migration Act 1958 (Cth)

MZXPI v Minister for Immigration & Anor [2008] FMCA 1296

Applicant: GURDAVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 437 of 2015

Judgment of: Judge McGuire

Hearing date: 27 July 2015

Date of Last Submission: 27 July 2015

Delivered at: Melbourne

Delivered on: 27 July 2015

REPRESENTATION

Solicitors for the Applicant: No Appearance

Counsel for the Respondents: Ms Bosnjak

Solicitors for the Respondents: Clayton  Utz

ORDERS

1. Leave is granted to amend the Second Respondent’s name to the Administrative Appeals Tribunal.

2. The Application filed on 5 March 2015 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $1,984.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 437 of 2015

GURDAVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

1. This is an application for judicial review of the determination of the Migration Review Tribunal (“the Tribunal”) made 27 March 2013 affirming the decision of the Minister’s delegate not to grant the applicant a Skilled (Provisional) (Class VC) visa (“the visa”).

2. The applicant is not here at Court. There has been some email communication indicating that he would not be attending. A request was made of the first respondent to consent to an adjournment. That consent was not forthcoming. The matter was listed at 11.30am today and the applicant was called.

3. The applicant filed an application on 5 March 2015 and supporting affidavit sworn 4 March 2015. The applicant seeks an extension of time and the application cites the following grounds:

   I have applied for migration Review Tribunal in 2012 but I haven’t heard anything till 2014 but all of a sudden I got to know about the decision in late 2014. My Migration Agent didn’t let me know.

4. The grounds  of his substantive application are as follows:

   I have applied for Migration Review Tribunal in 2012 for the Refusal of Skilled (Provisional)(Class VC) visa. I    have completed all the criteria and documentation to fulfil the requirement by the immigration Refused the file by giving the reason that they are unsatisfied by the evidence and documents which are provided by me.

5. The first respondent opposes the application on the basis that it is incompetent.

Background.

1. The applicant is from India.

2. The applicant applied for a Skilled (Provisional) (Class VC) visa on 19 October 2011. On 13 July 2012 the Minister’s delegate refused the application for a grant of visa. On 1 August 2012 the applicant applied to the Tribunal for a review of the Delegates decision. On 25 March 2013 the applicant was invited to appear before the Tribunal but did not appear at the hearing. On 27 March 2013 the Tribunal affirmed the Delegate’s decision. Significantly, on 17 April 2013 the Applicant applied to this Court then known as the Federal Magistrates Court for judicial review of the Tribunal’s decision of 27 March 2013. On 4 September 2014 that application was heard by my colleague Judge Turner and the application was dismissed. Then on 22 September 2014 the applicant filed a Notice of Appeal to the Federal Court and that application was heard by her Honour Justice Davies on 9 February 2015 and the appeal was dismissed. On 5 March 2015 the applicant filed a further application in this Court seeking a review of the Tribunal’s determination of 27 March 2013.

3. Significantly in the application before me today, and the first respondent in its submissions emphasises, that the applicant did not refer to the previous proceedings in this Court and the Federal Court under file numbers MLG506/2013 and VID552/2014 respectively.

4. I have noted the grounds of complaint in the substantive application.

5. The application before me made by the first respondent is that the applicant’s substantive application is incompetent pursuant to section 486D of the Migration Act 1958 (Cth) (“the Act”). That section provides:

   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. The submission is quite obviously that the application in its form as a second application infringes on s.486D of the Act and is therefore incompetent.[1]

   [1] MZXPI v Minister for Immigration & Anor [2008] FMCA 1296

7. The first respondent provides me with detailed submissions in relation to an abuse of process and whether the applicant should be estopped. By way of comment, there is merit to this argument. As indeed there is perhaps prima facie merit in a lack of material in support of the application to extend time. I am of the view that the application is incompetent in that it infringes s.486D of the Act and it should therefore be dismissed. I will order accordingly.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  4 September 2015