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

The applicants, Gena and two others, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning their application for a Regional Employer Nomination (Subclass 187) Visa. The AAT had found that the applicants failed to meet an essential criterion for the visa, specifically that the first applicant did not have an approved nomination. The applicants had made an oral application for an adjournment before the AAT, which was refused. The Federal Circuit Court was asked to determine whether the AAT's refusal of the adjournment was an error of law.

The central legal issue before the Federal Circuit Court was whether the AAT erred in law by refusing the applicants' oral application for an adjournment. This involved considering whether the refusal of the adjournment prevented the applicants from presenting their case or otherwise rendered the AAT's decision unfair or unjust. The court also had to consider whether there was an arguable case for relief, as contemplated by rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

Judge Street found that the applicants had not established an arguable case for relief. The court reasoned that the AAT had provided adequate reasons for refusing the adjournment, and that the applicants had not demonstrated how the refusal prejudiced their ability to present their case or that the AAT's decision was otherwise vitiated by an error of law. Consequently, the application was dismissed under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). The applicants were ordered to pay the first respondent's costs fixed at $3,737.00.