Hayat v Minister for Home Affairs

[2019] FCCA 190

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAYAT & ORS v MINISTER FOR HOME AFFAIRS  & ANOR [2019] FCCA 190

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Temporary Business Entry (Class UC) visas – application reliant on the outcome of proceedings SYG 2324 of 2018 – no approved nomination in accordance with the criterion of the Migration Regulations 1994 (Cth) – application dismissed.

Legislation:

Legislation Act 2003 (Cth), s. 12

Migration Act 1958 (Cth), s.476

First Applicant:	SIKANDER HAYAT
Second Applicant:	MUNEBA RAHMAT
Third Applicant:	AYAT SIKANDER

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2665 of 2018

Judgment of: Judge Street

Hearing date: 31 January 2019

Date of Last Submission: 31 January 2019

Delivered at: Sydney

Delivered on: 31 January 2019

REPRESENTATION

Solicitors for the Applicant: Mr C Levingston
Levingston & Associates

Counsel for the Respondents: Ms N Case

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

DATE OF ORDER: 31 January 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2665 of 2018

SIKANDER HAYAT

First Applicant

MUNEBA RAHMAT

Second Applicant

AYAT SIKANDER

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 27 August 2018 affirming a decision of the delegate not to grant the applicants Temporary Business Entry (Class UC) visas. 

2. These proceedings travelled together and were heard at the same time as proceedings SYG 2324 of 2018. It was in substance common ground between the parties that if the proceedings SYG 2324 of 2018 succeeded in obtaining the grant of writs that it would follow that writs should be issued in the present case.

3. The grounds in the application are as follows:

   1. The Tribunal fell into jurisdictional error in the case of the Nomination application, the subject of proceedings (SYG2324/2018) in this Court and refused to grant the applicants 457 visas on the basis of there being no approved nomination in accordance with criterion 457.223(4)(a) of the Migration regulations.

   2. The Tribunal’s decision not to adjourn the matter pending the outcome of proceedings (SYG2324/2018) in this Court is in the circumstances legally unreasonable.

4. The relevant ground 1 in the application involves the same construction question as raised in proceeding SYG 2324 of 2018. For the reasons given by the Court in proceeding SYG 2324 of 2018 ground 1 cannot succeed. The parties accepted that the outcome of the proceeding SYG 2324 of 2018 would in substance be determinative of the proceedings.

5. Ground 2 was abandoned in the submissions filed by the applicant in that case. 

6. The course taken by the parties on both sides was a sensible course for the expeditious determination of the two proceedings. As the applicant has been unsuccessful in obtaining constitutional writs and in the construction argument advanced in SYG 2324 of 2018 it follows that ground 1 makes out no jurisdictional error and that the application should be dismissed. The Tribunal was correct in applying the legislative instrument IMMI 17/060. There was no retrospective saving of the old instrument as the applicant’s rights were not adversely affected. The applicant did not have a right within s 12(2) of the Legislation Act 2003 (Cth).

7. No separate costs order was sought. Accordingly, the application is dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 March 2019