Jethara v Minister for Immigration - [2020] FCCA 529

FEDERAL CIRCUIT COURT OF AUSTRALIA

JETHARA v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 529

Catchwords:
MIGRATION –Review of Administrative Appeals Tribunal decision – refusal of an employment visa – interlocutory dismissal of show cause application – no grounds of review – incompetent application.

Legislation:

Migration Act 1958 (Cth), s.360

Migration Regulations 1994 (Cth)

Cases cited:

Basnet v Minister for Home Affairs [2019] FCCA 3046
Singh v Minister for Immigration [2017] FCAFC 105
Varsi v Minister for Immigration [2018] FCCA 1280

Applicant:

AADIL MOHAMMED YUSUF JETHARA

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 864 of 2019

Judgment of:

Judge Driver

Hearing date:

11 March 2020

Delivered at:

Sydney

Delivered on:

11 March 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr N. McArdle of Sparke Helmore Lawyers

INTERLOCUTORY ORDERS

The title of the First Respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The respondent has leave to amend the Outline of Submissions filed 4 March 2020 in respect of footnote 5 at paragraph 19 to read “Basnet v Minister for Home Affairs & Anor [2019] FCCA 3046 [25]-[30]”.
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 864 of 2019

AADIL MOHAMMED YUSUF JETHARA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Background

The applicant, Mr Jethara, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 March 2019. The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant Mr Jethara’s employer nomination permanent visas. There were two visa applicants. The second applicant was a member of Mr Jethara’s family group. She is not a party to this proceeding.
The background facts relating to this matter are set out in the Minister’s outline of submissions filed on 4 March 2020.
On 30 June 2017, Mr Jethara applied for the visa on the basis of his employment as a restaurant manager at Tandoori Hut (sponsor).[1] Mr Jethara’s wife applied for the visa as a member of his family unit.[2]
[1] Court book (CB) 8
[2] CB 3
On 17 May 2018, the nomination application lodged for Mr Jethara was withdrawn. On the same day, a letter was sent to Mr Jethara inviting him to comment on information that the nomination listing him as the nominee had been withdrawn.[3] Mr Jethara did not respond.
[3] CB 126
On 19 June 2018, the delegate refused to grant the visa on the basis that Mr Jethara was not the subject of an approved nomination and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 529
Decision Date: 11 March 2020

CaseChat Overview and Summary

In *Jethara v Minister for Immigration*, Driver J of the Federal Court of Australia considered an application for review of a decision made by the Administrative Appeals Tribunal. The applicant, Mr Jethara, sought judicial review of the Tribunal's decision concerning the refusal of his employment visa.

The primary legal issue before the Court was whether the applicant had established any valid grounds for review of the Tribunal's decision. This involved an assessment of the applicant's interlocutory application to dismiss a show cause notice, which the Court found to be incompetent.

Driver J reasoned that the applicant had failed to articulate any arguable or substantial error of law in the Tribunal's decision. The Court found that the application for review lacked the necessary grounds to proceed, rendering it incompetent. Consequently, the Court determined that there was no basis upon which to grant the relief sought by the applicant.

The application for review was dismissed.

Orders