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

[2021] FCCA 1312

FEDERAL CIRCUIT COURT OF AUSTRALIA

Jarial v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1312

File number(s):	PEG 27 of 2020
Judgment of:	JUDGE LUCEV
Date of judgment:	11 June 2021
Catchwords:	MIGRATION – Judicial review – Administrative Appeals Tribunal –  Employer Nomination Visa – where alleged error in nomination application decision – where judicial review sought in relation to that decision – where that review adjourned
Legislation:	Migration Act 1958 (Cth) s 476
Number of paragraphs:	5
Date of last submission:	26 March 2021
Date of hearing:	26 March 2021
Place:	Perth
Applicants:	In person (with the assistance of an interpreter)
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 27 of 2020

BETWEEN:

MINU JARIAL

First Applicant

ANIL KUMAR

Second 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:	11 JUNE 2021

THE COURT ORDERS THAT:

1.The matter be adjourned to a directions hearing on 16 August 2021 at 2.15pm.

2.Costs, if any, be reserved.

REASONS FOR JUDGMENT

JUDGE LUCEV

1. Before the Court is an application by Ms Minu Jarial (“Ms Jarial”) for judicial review filed on 24 January 2021 (“Ms Jarial’s Judicial Review Application”). Ms Jarial’s Judicial Review Application is brought under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal dated 9 January 2020 (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate of the first respondent, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant Ms Jarial an Employer Nomination (Temporary) (Class EN) (Subclass 186) visa (“Employer Nomination Visa”).

2. The dispositive reason in the Tribunal Decision is that Ms Jarial does not have an approved nomination for the Employer Nomination Visa. Relevantly, the Tribunal, differently constituted, upon review of a decision of a different delegate of the Minister, affirmed the decision not to approve the employer nomination application. The nominating employer, Jarial Couriers Pty Ltd, sought judicial review of that Tribunal decision in this Court on 12 December 2019 (“Jarial Couriers Nomination Review”).

3. This matter and the matter with respect to the Jarial Couriers Nomination Review were listed consecutively for final hearing before this Court on 26 March 2021. Procedural issues arose in the Jarial Couriers Nomination Review which prevented final determination of either matter. Earlier this morning, this Court handed down an interlocutory judgment in respect of the Jarial Couriers Nomination Review: Jarial Couriers Pty Ltd v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1313, and made certain procedural orders, including an order to adjourn that matter to a directions hearing on 16 August 2021 at 2pm.

4. There is no dispute that Ms Jarial’s Judicial Review Application is wholly contingent upon the outcome of the Jarial Couriers Nomination Review: see ground 1 of the Judicial Review Application and the Minister’s submissions filed 11 March 2021.

5. In the circumstances, it is appropriate that the following orders be made:

   (a)the matter be adjourned to a directions hearing on 16 August 2021 at 2.15pm; and

   (b)costs, if any, be reserved.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       11 June 2021