Jarial Couriers Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FCCA 1936
•16 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Jarial Couriers Pty Ltd v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 1936
File number(s): PEG 484 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 16 August 2021 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Employer Nomination Application
PRACTICE AND PROCEDURE – Where applicant in default – where step to be taken within limited time in order – order for dismissal where steps not taken
Legislation: Federal Circuit Court Rules 2001 (Cth) r 13.03B
Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) reg 5.19
Cases cited: Jarial Couriers v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1313 Number of paragraphs: 7 Date of last submission/s: 16 August 2021 Date of hearing: 16 August 2021 Place: Perth Applicant: No appearance by or for the Applicant Counsel for the First Respondent: Ms G. Ellis Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 484 of 2019 BETWEEN: JARIAL COURIERS PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
16 AUGUST 2021
THE COURT ORDERS THAT:
1.
The Applicant to pay the First Respondent’s costs in the sum of $5,000 by
16 September 2021.
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)JUDGE LUCEV
On 12 December 2019 the applicant, Jarial Couriers Pty Ltd (“Jarial Couriers”), filed an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) in relation to a decision made on 7 November 2019 by the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration, Citizenship and Multicultural Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse Jarial Couriers’ application for approval of the nomination of a position in Australia (“Employer Nomination Application”) under reg 5.19 of the Migration Regulations 1994 (Cth).
The matter came before the Court today for directions, following the adjournment of a hearing on 26 March 2021: Jarial Couriers v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1313 (“Jarial Couriers (No 1)”). The issue before the Court at that time was concerned with Jarial Couriers’ legal representation having been withdrawn and the subsequent applications made to the Court in relation to that withdrawal.
In Jarial Couriers (No 1) at [62] per Judge Lucev, the Court concluded as follows:
(a)it ought not grant leave under r 9.04 of the FCC Rules for a non-lawyer to appear for Jarial Couriers in these proceedings;
(b) the Minister’s application made orally at hearing for summary dismissal of the Judicial Review Application is to be dismissed;
(c) Jarial Couriers will be required, by order of the Court, to file an address for service for a lawyer acting for it in compliance with rr 6.01 of the FCC Rules by 11 August 2021; and
(d) if Jarial Couriers fails to comply with the Court’s order that it file an address for service for a lawyer acting for it in compliance with rr 6.01 of the FCC Rules by 11 August 2021 the Judicial Review Application is to be dismissed pursuant to r 13.03B(1)(c) of the FCC Rules.
Orders were made accordingly and:
(a)pursuant to Order 3 of the orders made on that day, Jarial Couriers was to file and serve an address for service by a lawyer by 11 August 2021; and
(b)Order 4 provided that, if Jarial Couriers failed to comply with Order 3, the originating application be dismissed, pursuant to rule 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
Jarial Couriers failed to comply with Order 3 of those orders. The Court has been told by Ms Jarial, who appears today in lieu of the director who endeavoured to appear on the last occasion, and says that the director has gone overseas to look after a sick family member in India and that inquiries were made of two to three lawyers, none of whom were prepared to accept the case. In those circumstances, it follows that no address for service for a lawyer has been filed and it does not appear likely that one would be filed in the circumstances which have been put before the Court.
It, therefore, follows that the originating application stands dismissed in accordance with Order 4 of the orders made on the last occasion and as of the date of the failure to file the address for service of a lawyer, namely, 11 August 2021.
The originating application having been dismissed, it follows that Jarial Couriers must pay the Minister’s costs. The Minister seeks costs in a sum, which is less than the scheduled amount to which the Minister is entitled, namely, $5,000. In the circumstances, it’s appropriate that there be an order that those costs be paid by Jarial Couriers to the Minister by 16 September 2021.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 20 August 2021
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