Holtom v Minister for Immigration

[2020] FCCA 3550

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLTOM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3550

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Employer Nomination (Permanent) (Class EN) visas – no appearance by or on behalf of the applicants – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(c)

Migration Act 1958 (Cth), s 476

First Applicant: STEPHANIE HOLTOM

Second Applicant: ADAM THOMAS WALSH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVFICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 811 of 2020

Judgment of: Judge Street

Hearing date: 16 December 2020

Date of Last Submission: 16 December 2020

Delivered at: Sydney

Delivered on: 16 December 2020

REPRESENTATION

No appearance by or on behalf of the Applicants

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The application is dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants pay the first respondent’s costs fixed in the amount of $5,600.00.

Date of order: 16 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 811 of 2020

STEPHANIE HOLTOM

First Applicant

ADAM THOMAS WALSH

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVFICES AND MULTICULTURAL 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 17 March 2020 affirming the decision of a delegate of the first respondent not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

2. The applicants had no approved nomination and, accordingly, the Tribunal found that the applicants failed to meet the criteria and affirmed the decision under review.

3. These proceedings, on their face, have no prospect of success unless related proceedings The Trustee for the Rashays Macquarie Unit Trust v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (SYG700/2020) (“the related proceedings”) by the entity seeking approval of the nomination succeeded. Those proceedings were listed for concurrent hearing.

4. Those proceedings are one in respect of which, as with these proceedings, a Mr Michael Sanders was identified as the solicitor on the record for the applicants who has failed to appear at the hearing today. The Court endeavoured to contact Mr Sanders unsuccessfully.

5. In its reasons in the related matter, the Court explained that it was also concerned that the related matter was one in respect of which there was no reasonable prospect of success and, similarly in these proceedings, there is no reasonable prospect of success.

6. The first respondent has moved for the proceedings to be dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

7. The Court is satisfied that the applicants’ legal representative was aware of the hearing. The Court has taken into account that these are proceedings that appear to have no reasonable prospect of success.

8. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 13.03C(1)(c) the Rules. The proceedings are dismissed under r 13.03C(1)(c) of the Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 12 February 2021