Akula v Minister for Immigration - [2020] FCCA 2661

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKULA & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2661

Catchwords:
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – where the applicant had previously held a Subclass 457 visa – where the applicant had been employed by an organisation related to the company listed as nominee for visa application – where the company and applicant informed nomination was refused – where the applicant claimed a denial of natural justice based on failure to refer the matter for Ministerial intervention – no evidence that Ministerial intervention sought – show cause hearing – no reasonably arguable case shown – otherwise futile – no basis for exercise of residual discretion – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 349, 351, 359A, 417, 476, 501J
Migration Regulations 1994 (Cth), cls.186.223, 186.311

Federal Circuit Rules 2001 (Cth), rr.44.11, 44.12, 44.13

Cases cited:

Singh v Minister for Immigration and Border Protection [2017] FCAFC 105

Spencer v The Commonwealth (2010) 241 CLR 118
SZTTW v Minister for Immigration and Border Protection [2014] FCA 837
SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6

Applicant:

UDAY AKULA

Second Applicant:

NANDHINI CHETTI

Third Applicant:

AKIRANANDAN PATEL AKULA

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1754 of 2018

Judgment of:

Judge A. Kelly

Hearing date:

17 September 2020

Date of Last Submission:

17 September 2020

Delivered at:

Melbourne

Delivered on:

23 September 2020

REPRESENTATION

The First Applicant:

In person

Counsel for the First Respondent:

Mr T. Creedon

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The first applicant be appointed litigation guardian of the third applicant.
Pursuant to r 44(1)(a) of the Federal Circuit Court Rules 2001, the application dated 15 June 2018 be dismissed.
The first applicant pay the costs of the first respondent fixed at $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1754 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 2661
Decision Date: 23 September 2020

CaseChat Overview and Summary

The applicant, Akula, sought judicial review of a decision by the Minister for Immigration to refuse an Employer Nomination (Permanent) (Class EN) visa. Akula had previously held a Subclass 457 visa and was employed by an organisation related to the company nominated for the permanent visa. Both the company and Akula were informed that the nomination was refused. Akula contended that there had been a denial of natural justice due to the failure to refer the matter for Ministerial intervention. The application was heard by Judge A. Kelly.

The central legal issue before the court was whether the Minister's delegate had erred in law by failing to consider referring the matter for Ministerial intervention, thereby denying Akula natural justice. This required the court to determine if there was a reasonably arguable case for such intervention, or if such a referral would have been otherwise futile.

Judge Kelly found that there was no evidence that Akula had sought Ministerial intervention, nor was there any indication that the delegate was aware of any grounds upon which such intervention might be warranted. The court reasoned that a failure to refer for Ministerial intervention would only constitute an error of law if there was a reasonably arguable case for intervention, or if the intervention would not be futile. In this instance, the court concluded that no such case had been made out, and any referral would have been futile. Consequently, there was no basis for the exercise of the residual discretion to refer the matter for Ministerial intervention.

The application for judicial review was dismissed.

Orders