Dhawan v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 155
•13 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhawan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 155
File number(s): BRG 555 of 2022 Judgment of: JUDGE VASTA Date of judgment: 13 January 2025 Catchwords: MIGRATION – Review of registrar’s decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed Legislation: Migration Act 1958 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 19 Date of last submission/s: 13 January 2025 Date of hearing: 13 January 2025 Place: Brisbane Counsel for the Applicant: The Applicant appearing on his own behalf Counsel for the First Respondent: Ms Satyendra, Solicitor Solicitor for the First Respondent: Minter Ellison Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
BRG 555 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RISHAB DHAWAN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
13 JANUARY 2025
THE COURT ORDERS THAT:
1.The application for review is dismissed.
2.The Applicant pay the First Respondent’s cost of and incidental to the review application fixed in the sum of $750.00.
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
(Ex tempore)JUDGE VASTA
On 12 November 2024, Registrar Cummings made an order that the application for judicial review made by the Applicant, Rishab Dhawan be summarily dismissed. The Applicant asked this Court to review that decision on 16 December 2024.
What the Applicant seems not to have realised was that any application for review against a Registrar's decision, in the general federal jurisdiction, must be filed within seven days. This application was filed some 34 days afterwards, which means it was 27 days outside of the time limit.
Therefore, the Applicant needs to get the Court to extend the time.
Notwithstanding this aspect, the Court proceeded today as if this matter were an application for review that had been properly filed.
The background to the matter is that the Applicant had applied for a visa in the employment stream, that is, a regional employer nomination visa. The position he applied for was that of cook. That position had an ANZSCO code of 351411. The Applicant, in his application, said that the nominator was Simply Italian Cairns Proprietary Limited. It is a requirement, for the visa that the Applicant applied for, that he have, firstly, a nominated position, that being cook, but also that the employer also have a nomination.
The employer, Simply Italian Cairns Proprietary Limited, needed to make an application, separately from that made by the Applicant, so that they could become an approved, nominated employer. The employer did make such an application, but it was refused by the delegate, and that decision was affirmed by the Tribunal.
The employer ended up being deregistered. This means that Simply Italian Cairns Proprietary Limited no longer exists. Because the Applicant could not show that he had an employer, namely, Simply Italian Cairns Proprietary Limited, as an approved nominated employer, the Applicant could not fulfil the requirements of the visa.
The Tribunal found that, because of this, the decision of the delegate had to be affirmed.
The Applicant came to this Court by filing an application for review on 5 December 2022. His grounds for application were, firstly, that the Tribunal did not give him justice because it did not look into the hardships he suffered due to the deregistration of the employer company; and, secondly, that he had a new employer willing to take the approval for nomination.
The application could not succeed on those grounds. That is because, firstly, going to ground two, it did not matter whether there was some new employer willing to take the approval for nomination. The Tribunal had to look at whether Simply Italian Cairns Proprietary Limited was an approved nominated employer. If Simply Italian Cairns Proprietary Limited did not have a nomination, then the application, that the Applicant made, could never be successful.
The other ground was based on sympathy. Whilst it is very easy to feel sorry for the Applicant because he has spent a lot of money trying to get the visa, and that he is now in debt, and that he has worked for his employer for some time until the business closed, and that he has absolutely nothing to show for it because of the debts that he has incurred in trying to get the visa, these matters could never have been taken into consideration despite the vehemence of the Applicant that they were proper matters for consideration..
The problem for the Applicant is that the legislation does not allow for such circumstances to be taken into consideration. The legislation is very black and white. You either have a nominated employer, or you do not have a nominated employer. There is no wiggle room. There is no clause that says that if someone is suffering hardship, then the Minister can consider still giving that person a visa. Any failure to consider hardship, therefore, could never amount to a jurisdictional error.
The third aspect as to why this matter would never be successful is that Simply Italian Cairns Proprietary Limited has now deregistered and does not exist. Therefore, any further consideration of this application would be futile because a visa can never be given for a job w an employer who does not exist anymore.
The Registrar summarily dismissed this matter.
I must look at the matter again as a de novo hearing, and I ignore all the reasons that the Registrar gave for summarily dismissing the application. But, for the reasons that I have already articulated, I have no option but to dismiss summarily the application of the Applicant. Having come to that decision, the only order that I can make is that the application for review is dismissed. Having considered the matter as I have, it is probably best that I allow the extension of time which does not affect the other orders I have made.
The Applicant also asked me to review the costs ordered against him. The costs were costs that were fixed in the sum of $4198.38. That is the scale amount for an interlocutory proceeding. As I explained to the Applicant, there is a scale which determines what is the payment for a particular proceeding. If the matter goes to a full hearing, then there is a certain scale amount of costs that the unsuccessful party would have to pay to the successful party. There is also a scale amount for an unsuccessful party to pay a successful party on an interlocutory application.
Given that the Minister asked this matter to be dealt with as an application for summary dismissal, it meant that the scale amount that could be ordered by the Court could only be that of an interlocutory hearing and not of the full hearing. As I explained to the Applicant, the costs for the full hearing were over $8400. The costs for the interlocutory hearing were less than $4200. This means that the Applicant has actually been saved money by the Minister choosing to make this application rather than going to a full hearing.
The Minister has asked for their costs for this particular hearing. The Minister would have been entitled to a similar amount of money, but because of the circumstances of the Applicant and the Minister being able to rely on the material that had already been filed, the Minister has asked for costs to be made not in the sum of $4000, but in the sum of $750 for today’s hearing.
I am of the view that I should accede to what the Minister has asked and order that the costs be fixed in the sum of $750.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of Judge Vasta. Associate:
Dated: 11 February 2025
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