BOMMA v Minister for Immigration

[2014] FCCA 1563

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOMMA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1563

Catchwords:
MIGRATION – Show cause hearing – no arguable case – costs ordered.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Applicant: SHASHIKANTH REDDY BOMMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: DNG 13 of 2014

Judgment of: Judge Harland

Hearing date: 10 July 2014

Date of Last Submission: 10 July 2014

Delivered at: Darwin

Delivered on: 10 July 2014

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Ms Nanson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That pursuant to r.4412 of the Federal Circuit Court Rules 2001 (Cth) the application be dismissed.

2. That the applicant shall pay the respondent’s costs fixed in the sum of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 13 of 2014

SHASHIKANTH REDDY BOMMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is an application by the Minister for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). Counsel for the Minister outlined the basis for that application. The applicant applied for a class BW (subclass 857) visa. The requirements of the regulations and in particular, schedule 2, regulation 857.213 requires that the applicant has been nominated by an employer and in 857.221 that the appointment has been approved.

2. The applicant complains that there was a breach of natural justice and that there was a failure by the Tribunal to take into account a relevant consideration when making its decision.  Ms Nanson identified two further grounds in the applicant’s application being that the decision was unfair and that the tribunal had failed to take into account the relevant consideration.  The applicant now concedes that his application cannot succeed because the regulations were expressed very clearly with mandatory timeframes.  He now understands that the reason that his application was refused was because there is no accepted nomination from his employer. 

3. I will touch briefly on his grounds of review.  It was clear to me that the rules of natural justice was satisfied as the applicant was given the opportunity and took up the opportunity to appear before the Tribunal and give further evidence.  It is also clear to me that the Tribunal did consider the relevant considerations and found that this simply was non-compliance with the regulations. And the Tribunal checked to ensure that there hadn’t been a nomination given and also that the employer had not sought to review the refusal to accept the nomination.

4. The ground raised about the Tribunal’s decision being unfair would invite this Court to make a merits review, which it cannot do on a judicial review and it is clear that the Tribunal did consider the relevant considerations in that.   In fact, the applicant was not able to satisfy the criteria, which he now understands.  As this matter has proceeded to a show cause hearing today, the Minister seeks costs in accordance with the schedule in the sum of $3326.  Costs follow the event and there is no reason to depart from that in this instance.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  18 July 2014