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

[2021] FCCA 2141

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hamdani v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2141

File number:

DNG 18 of 2020

Judgment of:

JUDGE YOUNG

Date of judgment:

26 August 2021

Catchwords:

MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal to affirm a decision of the Minister’s delegate to refuse to grant a Regional Employer Nomination (Permanent) (Class RN) visa – where the applicant failed to appear – no jurisdictional error made out – application dismissed

Legislation:

Migration Act 1958 (Cth), ss 65, 359A, 360

Federal Circuit Court Rules 2001 (Cth), r 13.03C

Number of paragraphs:

6

Date of hearing:

26 August 2021

Place:

Darwin

The Applicant:

No appearance by or for the Applicant

Solicitor for the First Respondent:

Mr Pasas of Clayton Utz

ORDERS

DNG 18 of 2020

BETWEEN:

SYED MUHAMMAD HASHIM HAMDANI

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	26 AUGUST 2021

THE COURT ORDERS THAT:

1.The Application filed on 2 June 2020 is dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

2.The Applicant is to pay the First Respondent’s costs in the fixed sum of $3,737.

3.In accordance with r 16.05 of the Rules the applicant has liberty to apply to set aside the orders made today on filing and serving an application and affidavit setting out his reasons for wanting the orders set aside and explaining his non-attendance at court today within 28 days of receipt by him of a sealed copy of these orders.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application for judicial review of decision of the Administrative Appeals Tribunal (the Tribunal) made on 11 May 2020 which affirmed a decision of the Minister’s delegate (the delegate) to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa (the visa) under section 65 of the Migration Act 1958 (Cth) (the Act).  The grounds of review were, in summary terms, that the Tribunal did not follow proper procedure, that the applicant was denied an opportunity to present arguments in person and, that the applicant did not have time to respond to the Tribunal. 

2. A mandatory criterion for the issue of the visa sought by the applicant was an approved nomination lodged by an employer or a proposed employer.  The mandatory requirements are that the nomination be approved and not withdrawn, there be no adverse information about the applicant, there be a position available and the visa application be made within six months after the nomination.  All of that was recorded by the Tribunal. 

3. The nomination by the proposed employer, “Tandoori Vibes – Restaurant and Bar”, was refused. The applicant was asked to provide comments in writing to the Tribunal pursuant to section 359A of the Act. There was no response to that and, accordingly, the Tribunal concluded pursuant to section 360(3) of the Act, that the applicant had no entitlement to appear and the matter was considered by the Tribunal in his absence. The Tribunal concluded that, given a mandatory criterion has not been satisfied, the application must be refused.

4. The applicant has not appeared today.  There have been a number of communications between the Court and him.  On 19 July 2021 an email was sent to him with a notice of listing outlining that the matter was listed at 2:15pm today.  On 20 August 2021 similar advice was sent.  On 21 August 2021 my Associate received a reply from the applicant indicating that he wished to withdraw his application due to depression. On 23 August 2021 my Associate replied to the applicant that if he wished to discontinue his application, he could file a notice of discontinuance, make an oral application on the day or, alternatively, he could apply for an adjournment.

5. My Associate has told me that when he made inquiries around the Court earlier today, he had been informed by the security guards that they thought the applicant had been present but had left the building prior to the matter being called on. In any event, when my Associate called the matter outside the court at 2:25pm the applicant did not appear. I am satisfied that the applicant was aware that the matter was listed for hearing and, for whatever reason, has decided not to appear. In the circumstances, the Minister seeks the dismissal of the application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) due to the default of appearance by the applicant.

6. I propose to make that order.  The application will be dismissed.  

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       9 September 2021