Ameen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 403

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ameen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 403

File number(s):

BRG 977 of 2019

Judgment of:

JUDGE EGAN

Date of judgment:

4 March 2021

Catchwords:

PRACTICE AND PROCEDURE – Where appeal to Federal Court in a different matter could have a significant impact upon the rights of the applicants in the subject proceeding – where concession to that effect made by the lawyers for the first respondent – where application for adjournment nonetheless continued to be opposed by lawyers for first respondent – where no evidence before the Court that the applicants in the current proceeding had contributed to delays in the filing of an appeal in the different matter – application granted.

Legislation:

 Migration Act 1958 (Cth) s 476A(3)(a).

Migration Regulations 1994 (Cth), Schedule 2, cll 186.223, 186.311.

Judiciary Act 1903 (Cth) s 39B.

Number of paragraphs:

15

Date of last submission/s:

3 March 2021

Date of hearing:

3 March 2021

Place:

Brisbane

Solicitor for the Applicants:

Mr Tien of Legal Guru

Solicitor for the First Respondent:

Ms Allen of Sparke Helmore

Second Respondent:

Submitting appearance save as to costs

ORDERS

BRG 977 of 2019

BETWEEN:

MOHAMED OSMAN THARICK AMEEN

First Applicant

FATHIMA NABEELA JASMIN AMEEN

Second Applicant

MOHAMED OMAR THASRICK AMEEN (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	4 MARCH 2021

IT IS ORDERED THAT:

1.The hearing and determination of this Application for Review be adjourned to a date to be fixed after the handing down of judgment by the Federal Court in appeal proceedings commenced by Halal Restaurant Supplies Pty Ltd against orders of this Court made in BRG 933/2019.

2.There be no order as to the costs of and incidental to the hearing before the Court on 3 March 2021.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The hearing of this application for review was set down for 3 March 2021 commencing at 9.45am (AEST).

2. On 1 March 2021, the lawyer for the applicants advised Judge’s Chambers that he had received instructions from Halal Restaurant Supplies Pty Ltd to file, in the Federal Court Registry, applications made under s. 39B of the Judiciary Act 1903 (Cth), seeking the quashing of a judgment of this Court handed down on 28 April 2020. The decision of the Court was that an application for review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 20 September 2019 refusing an application made by Halal Restaurant Supplies Pty Ltd for approval of the nomination of a position for the first applicant in these proceedings be refused.

3. As a consequence of the making of an earlier decision of the Tribunal refusing the application by Halal Restaurant Supplies Pty Ltd of a nomination application, the Tribunal decided, on 11 October 2019, that the first applicant’s application for an Employer Nomination (Permanent) (Class EN) Visa could not succeed because an essential criteria under cl. 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) could not be met, namely that there was an approved employer nomination in place for him. As a consequence, it was decided by the Tribunal that the second, third and fourth applicants, as dependants and family members of the first applicant, had failed to satisfy the criteria under cl. 186.311 of Schedule 2 to the Regulations, and that their visa applications ought to be refused.

4. An application for extension of time for review of the decision of the Tribunal affecting Halal Restaurant Supplies Pty Ltd was filed in the registry of the Federal Circuit Court of Australia on 29 October 2019.

5. By order of this Court made on 28 April 2020, the Court refused the application for extension of time.

6. Acting on the erroneous assumption that the company had a right of appeal to the Federal Court from such decision of the Federal Circuit Court, an appeal was lodged in the registry of the Federal Court seeking to overturn the Court’s judgment.

7. On 16 November 2020, Chief Justice Allsop ordered that the company’s appeal be dismissed as being incompetent. Citing the provisions of s. 476A(3)(a) of the Migration Act 1958 (Cth) (‘the Act’), the Chief Justice, in reasons handed down on 2 November 2020, found that the company had no right of appeal to the Federal Court from an order of the Federal Circuit Court refusing an application for extension of time to file an application for review of a decision of the Tribunal. The Chief Justice acknowledged, though, that the company had a residual right under s. 39B of the Judiciary Act 1903 (Cth) to seek to overturn the decision of this Court.

8. Exhibit 2 was a letter from the lawyer for the applicants in this proceeding to the lawyers for the first respondent, and to Judge’s Chambers, requesting an adjournment of the proposed hearing on 3 March 2021 by reason of the recent instructions received by him to file an appeal in the Halal Restaurant Supplies Pty Ltd matter pursuant to s. 39B of the Judiciary Act.

9. Exhibit 4 was a response from the lawyers for the first respondent in which it was indicated that any application for an adjournment would be opposed.

10. Exhibit 6 was a letter from the lawyer for the applicants advising that an appeal in the Halal Restaurant Supplies Pty Ltd matter had been lodged in the Federal Court Registry. Exhibit 7 was a request made by Judge’s Chambers to the lawyers for the first respondent again seeking their instructions as to the requested adjournment in the light of the communication by the lawyers for the applicants that an appeal had relevantly been filed on behalf of Halal Restaurant Supplies Pty Ltd.

11. Exhibit 8 was a letter from the lawyers for the first respondent confirming that the objection to any adjournment was maintained.

12. Both Mr Tien on behalf of the applicants, and Ms Allen on behalf of the first respondent, made written and oral submissions on the question as to whether or not an adjournment should be granted. Ms Allen properly conceded that if the appeal instituted on behalf of Halal Restaurant Supplies Pty Ltd was successful, then that would necessarily impact upon the application for review presently before this Court. Ms Allen submitted, however, that there had been substantial delay in the filing by Halal Restaurant Supplies Pty Ltd of any notice of appeal consequent upon the dismissal of its earlier appeal by order of Chief Justice Allsop on 16 November 2020. It was submitted that as a matter of public policy the application for review ought to be heard and determined.

13. The Court has had regard to the submissions made on behalf of the first respondent but does not accept them. There was no evidence before the Court that the applicants in this proceeding had in any way been the cause of any delay in the filing of the appeal by Halal Restaurant Supplies Pty Ltd pursuant to the provisions of s. 39B of the Judiciary Act. In circumstances where a possible outcome of the Federal Court appeal by Halal Restaurant Supplies Pty Ltd could realistically affect the outcome of the application for review filed on behalf of the applicants, the Court considers that it is in the interests of justice that the applications for review be adjourned until after judgment in the Federal Court appeal is handed down.

14. On the question of costs, the first respondent failed in its resistance to the adjournment of the hearing. The costs of the hearing before the Court could have been avoided had the first respondent agreed to the requested adjournment, and court time could have been saved.

15. It is ordered that there be no order as to the costs of and incidental to the hearing before the Court on 3 March 2021.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       4 March 2021

SCHEDULE OF PARTIES

BRG 977 of 2019
Applicants
Fourth Applicant:	RABIHA FARHANA NADEEHA AMEEN