TRIPATHI v Minister for Immigration (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRIPATHI v MINISTER FOR IMMIGRATION (No.2) [2013] FMCA 179

MIGRATION – Final ruling following receipt of further materials – application dismissed. 

Migration Act 1958 (Cth)

Applicant: RAJAN TRIPATHI

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: MLG 1172 of 2012

Judgment of: Burchardt FM

Hearing date: 15 February 2013

Date of Last Submission: 5 March 2013

Delivered at: Melbourne

Delivered on: 18 March 2013

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Brown

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The applicant pay the first respondent’s costs fixed in the sum of $6,471.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1172 of 2012

RAJAN TRIPATHI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. On 15 February 2013, I gave Judgment in this matter and made an order.  The order was that the parties file and serve any further materials on or before 1 March 2013. 

2. As will be apparent, I was concerned that the materials before the Court might be insufficient to enable the Court to determine the critical question of fact that the case gave rise to, namely whether the credit card details provided by the applicant’s agent would have been sufficient to enable the respondent to achieve payment. 

3. Because of the slightly opaque state of the evidence, I gave the parties until 1 March 2013 to file any further materials as they might be advised to on the facts that would bear upon this critical factual issue. 

4. On 1 March 2013, the respondent filed affidavits sworn by James Malizani, Stephen Russell and Angela Nguyen.  Mr Malizani is the Assistant Secretary of the Financial Management and Operations Branch within the Department of Immigration and Citizenship. 

   
   

   Mr Russell is the Director of Program Delivery Temporary Business Entry (also within the Department of Immigration) and Ms Nguyen is Associate, Acquiring Products at the Commonwealth Bank of Australia. 

5. Mr Malizani has worked in that position for approximately three years and before that held roles within the Department in the finance area for approximately five years.  In his position he is responsible for the financial management and operations of the Department.  Mr Russell and Ms Nguyen have been employed in their roles for lesser periods of time, but still of sufficient duration to ground their evidence. 

6. From the matters set out in Mr Malizani’s affidavit, which are clearly within his knowledge given his length of experience, it is quite clear that the applicant did not pay the prescribed fee with his application.  The affidavits of Mr Russell and Ms Nguyen further support the evidence of Mr Malizani. 

7. On what appears to be 1 March 2013, the applicant filed a document annexed to an unsworn affidavit.  He annexed a letter (undated) which raised two matters.  The first was an assertion that when his agent submitted his application, the agent was physically present at the counter at the immigration office and offered his credit card for the application fees…