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

[2021] FCCA 2057

FEDERAL CIRCUIT COURT OF AUSTRALIA

Gena v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2057

File number(s):

SYG 1382 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

16 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (Subclass 187) Visa – where the first applicant did not have an approved nomination – where the Tribunal found that the applicants failed to meet an essential criteria of the visa – oral application for an adjournment made – oral application for an adjournment refused – no arguable case for relief claimed – application dismissed under r 44.12 Federal Circuit Court Rules2001 (Cth)

Legislation:

Migration Act 1958 (Cth), ss 359A, 376, 476

Migration Regulations 1994 (Cth), cl 187.233(3)

Federal Circuit Court Rules2001 (Cth), r 44.12

Number of paragraphs:

16

Date of hearing:

16 August 2021

Place:

Sydney

Solicitor for the applicants:

First applicant, in person

Solicitor for the respondent:

Ms S Wright, Mills Oakley

ORDERS

SYG 1382 of 2020

BETWEEN:

MOHAMMADSALIM ISHAKBHAI GENA

First Applicant

NAJAMABEN MOHAMMADSALIM GENA

Second Applicant

ABRAR MOHAMMADSALIM GENA (and another named in the Schedule)

Third Applicant

AND:

MINNISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	16 AUGUST 2021

THE COURT ORDERS THAT:

1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2.The first, second and third applicants pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 May 2020, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants’ Regional Employer Nomination (Subclass 187) Visa (“the Visa”).

2. The applicants are citizens of India. The second, third and fourth applicants are, respectively, the first applicant’s wife and adult children.

3. On 19 February 2018, the delegate found that the applicants did not meet the criteria because the first applicant did not have an approved nomination, as required by cl 187.233(3) of the Migration Regulations 1994 (Cth) (“the Regulations”).

4. On 2 March 2018, the applicants applied for review by the Tribunal. On 25 February 2020, the Tribunal invited the applicants to appear at a hearing on 19 March 2020.

5. On 7 May 2020, a differently constituted Tribunal affirmed a delegate’s decision not to approve the nomination.

6. On 13 May 2020, the current Tribunal invited the applicants by letter to comment or respond to information under s 359A of the Act. The Tribunal’s letter stated that the response was required by 27 May 2020. On 27 May 2020, a response was provided, requesting a postponement of the decision.

7. On 28 May 2020, the Tribunal affirmed the decision of the delegate. The Tribunal placed no weight on the material that was anonymously provided to it, being the subject of a s 376 certificate.

8. The Tribunal found that the first applicant was not the subject of an approved nomination as required under cl 187.233 of the Regulations, and accordingly, affirmed the decision of the delegate under review. 

   BEFORE THE COURT

9. These proceedings were commenced on 5 June 2020. The matter was fixed today for a show cause hearing today, 16 August 2021.

10. At the commencement of the hearing, the first applicant said that he wanted an adjournment so he could contact his lawyer. These proceedings have been on foot since 5 June 2020. The matter was fixed for hearing today, pursuant to orders made on 5 July 2021. The first applicant has had ample opportunity to get legal representation, if he was able to do so. The first applicant’s desire to speak to his lawyer does not identify any proper basis upon which the Court could have any confidence that granting an adjournment would be of any utility. 

11. The Court has also taken into account the want of substantive merit in the originating application. It is in these circumstances that the Court was not satisfied an adjournment was warranted in the interests of the administration of justice. The Court notes that the adjournment was also opposed by the first respondent.

12. The first applicant made reference to his work history but did not identify any basis upon which the Court could find that the grounds in the application identify an arguable case for the relief claimed. Nothing said by the applicant identified an arguable case for the relief claimed.

    THE GROUND

13. The Ground in the application is as follows:

    1.The tribunal in applicant’s matter affirmed the decision of the Department of Home Affairs because Abid Australia Pty Ltd (the employer of the applicant) did not have their nomination approved (AAT case number: 1801605). The employer (Abid Australia Pty Ltd) has sought the judicial review of the AAT decision of affirming the decision under review to refuse the nomination application. The employer (Abid Australia Pty Ltd) has lodged the Judicial review application at Sydney Registry on 02 June 2020 (SYG1347/2020-Abid Australia Pty Ltd v MICMSMA & Anor). If the court accede to the Abid Australia pty ltd application, that Mr Gena’s application would also have to succeed.

14. The Ground, in substance, recites the history of the matter and does not identify any arguable case of relevant error. For the applicants to succeed, it was an essential criteria to have an approved nomination. The applicants did not have one.

15. The Court is not satisfied that the Ground in the application has raised an arguable case for the relief claimed. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules2001 (Cth).

16. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding sixteen (16) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Dated:       27 September 2021

SCHEDULE OF PARTIES

SYG 1382 of 2020
Applicants
Fourth Applicant:	AYAN MOHAMMADSALIM GENA