Batool v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 244
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Batool v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 244
File number(s): SYG 1080 of 2020 Judgment of: JUDGE STREET Date of judgment: 15 October 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for reinstatement of proceedings – where the applicants failed to appear at the original hearing – no satisfactory reason for the applicants’ failure to attend the original hearing – oral application for an adjournment refused – whether there would be utility in reinstating the proceedings – no arguable error by the Tribunal made out – application for reinstatement dismissed Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.03C(1)(c)
Migration Regulations 1994 (Cth) cl 187.223
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 15 October 2021 Place: Sydney Solicitor for the applicants: First applicant, in person Solicitor for the first respondent: Ms C Dunn, HWL Ebsworth ORDERS
SYG 1080 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASIFA BATOOL
First Applicant
HAFIZ SYED MUHAMMAD TAHASHAM ALI SHAH
Second Applicant
SYED MUHAMMAD HASSAN RAZA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
15 OCTOBER 2021
THE COURT ORDERS THAT:
1.The oral application for an adjournment is dismissed.
2.The application in a case filed on 24 August 2021 is dismissed.
3.The first and second applicants pay the first respondent’s costs fixed in the amount of $1,550.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
Introduction
This is an application in a case filed on 24 August 2021, seeking reinstatement of the proceedings. Under r 13.03C(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the proceedings were dismissed on 18 August 2021 when the applicant failed to appear before the Court.
On 25 June 2020, a Registrar appointed the first applicant as a litigation guardian for the third applicant.
Before the Court
At the commencement of this hearing, the Court explained to the first applicant the nature of the reinstatement hearing. The applicant explained that she had difficulty trying to operate the Microsoft Teams invitation and to join the hearing on 18 August 2021. The applicant’s explanation for the failure to attend the hearing is not satisfactory. At the hearing on 18 August 2021, the Court endeavoured to contact the first applicant and the first applicant’s telephone number. The first applicant was clearly aware of the hearing.
The first applicant made reference to a medical report, which did not explain why the first applicant would be unable to attend the hearing by audio or video link.
The Originating Application
In relation to the merits of the originating application, the first applicant referred to her circumstances in which her employer failed to continue the support for her employment. The first applicant stated that she had been working hard, and sought to explain why she did not have an approved nomination.
Unfortunately for the applicants, an approved nomination was an essential requirement for the applicants to succeed before the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal explained the need for an approved nomination in a letter sent to the applicants, and at the hearing before the Tribunal. The Tribunal found that the first applicant did not meet cl 186.223 of the Migration Regulations 1994 (Cth) without an approved nomination. Consequently, the Tribunal affirmed the decision under review.
The first applicant made reference to her circumstances and that she wanted to try and obtain a new nomination. A new nomination would not meet the statutory criteria.
The first applicant then sought an adjournment in order to obtain a lawyer. The first applicant has had ample opportunity to obtain legal representation, if she was able to do so, since the commencement of these proceedings on 6 May 2020. The adjournment was opposed by the first respondent. The Court has also taken into account the complete want of merit in the application to this Court, because, without an approved nomination, the applicants could not succeed. The Court was not satisfied that an adjournment was warranted in the interest of the administration of justice.
The first applicant otherwise invited the Court to determine the matter on compassionate or discretionary grounds. The Court explained to the first applicant that it had no power to do so.
The Grounds
The Grounds in the application are as follows:
Ground 1
1.Employer status was changed with laps of two years during period of decision pended at Immigration Assessment Authority for granting PR Visa.
Ground 2
2.IAA did not decide of granting PR visa for almost 25 months and eligibility status of employer was changed. The department decision for future nomination eligibility should not be applied on nominations made earlier by the employer.
Ground 3
3.IAA did not make decision on the circumstances/status/law prevailing on date of application submitted.
Ground 4
4.Inordinate delay in decision making of IAA destroyed the precious time of applicant and his family which could not be compensated without seeking remedy of the alternative from the competent court.
Consideration
None of the four Grounds identify a reasonable argument that the Tribunal’s decision is the subject of jurisdictional error. The employer’s changed status does not identify any basis upon which there was an arguable error by the Tribunal.
The time taken for the Tribunal to determine the matter does not establish any arguable error. Further, the Tribunal had no power to waive the mandatory requirement for an approved nomination.
It is patent from the communication that was sent to the applicants by the Tribunal, and what was raised at the hearing, that the first applicant did not have an approved nomination. The first applicant had to have an approved nomination at the time of hearing. It was not limited to the position at the time of application. The reference to inordinate delay is without merit, and the family circumstances do not identify an arguable error by the Tribunal.
Further, in the absence of an approved nomination, there would be no utility in reinstating these proceedings. In addition to the unsatisfactory explanation for the failure to appear, on the merits, the Court is not satisfied that there would be any utility in reinstating the proceedings.
The first applicant also sought to re-agitate the adverse costs order for the failure to appear. The ordinary rule is that the successful party is entitled to their costs. The difficulty that an applicant may face in paying that costs order is not a proper basis to decline to make the costs order in favour of the successful party.
Further, these proceedings were hopeless from the start. Without an approved nomination, the first applicant could not succeed in this Court. The proceedings had no reasonable prospect of success. In these circumstances the Court declines to revisit the earlier costs order.
Accordingly, the application in a case filed on 24 August 2021 is dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 October 2021 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 15 February 2022
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