Akula v Minister for Immigration

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.