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

[2021] FCCA 2072

FEDERAL CIRCUIT COURT OF AUSTRALIA

Komite v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2072

File number(s):

SYG 1619 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

16 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for Employer Nomination (Permanent) (Subclass 186) Visas – where the applicants did not have an approved nomination – oral application for an adjournment made – oral application for an adjournment refused – where the applicants’ submissions invited impermissible merits review – no arguable case for the relief claimed – application dismissed under r 44.12 Federal Circuit Court Rules 2001 (Cth)

Legislation:

Migration Act 1958 (Cth), ss 359A, 476

Migration Regulations 1994 (Cth), cl 186.223

Federal Circuit Court Rules 2001 (Cth), r 44.12

Number of paragraphs:

17

Date of hearing:

16 August 2021

Place:

Sydney

Solicitor for the applicants:

First applicant, in person

Solicitor for the respondent:

Ms S Wright, Mills Oakley

ORDERS

SYG 1619 of 2020

BETWEEN:

SANTOSH KOMITE

First Applicant

SASYA GURALA

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	16 AUGUST 2021

THE COURT ORDERS THAT:

1.The oral application for an adjournment is refused.

2.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3.The applicants pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 10 June 2020, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants’ Employer Nomination (Permanent) (Subclass 186) Visas (“the Visas”).

2. The first applicant is a citizen of India, and the second applicant is his spouse.

3. On 27 January 2016, the applicants applied for the Visas.

4. On 27 November 2017, a delegate refused the grant of the Visas because the first applicant did not have an approved nomination, as required by cl 186.223(2) of sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

5. On 15 December 2017, the applicants applied for review to the Tribunal.

6. On 29 April 2020, the Tribunal invited the applicants to comment on the adverse information that there was not an approved nomination, pursuant to s 359A of the Act. A response was provided, and the applicants were invited to and attended a hearing on 30 June 2020.

7. At the hearing, the Tribunal identified that there was not an approved nomination, and found that the applicants failed to meet the criteria under cl 186.223 of the Regulations. Consequently, the Tribunal affirmed the decision of the delegate under review.

   BEFORE THE COURT

8. These proceedings were commenced on 6 July 2020. The proceedings were fixed for a show cause hearing today, 16 August 2021, under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

9. At the commencement of the hearing, the Court explained to the first applicant the nature of the hearing.

10. The first applicant orally applied for an adjournment so that he could obtain a lawyer, because of his mental health, and because of the COVID-19 situation. The Court is satisfied that the first applicant was able to meaningfully participate in the hearing if the first applicant chose to do so. The first applicant has had ample opportunity to obtain a lawyer if he was able to do so.

11. The Court has also taken into account the want of substantive merit in the originating application. The adjournment was also opposed by the first respondent.

12. The Court is not satisfied that there would be any utility in granting an adjournment. The Court is not satisfied that an adjourned is warranted in the interest of the administration of justice. It is for these reasons that the adjournment application was refused.

13. The first applicant otherwise put no submissions as to why the Tribunal’s decision or review was the subject of a reasonable argument that it was unlawful or unfair.

    THE GROUND

14. The Ground in the application is as follows:

    1.Administrative Appeals Tribunal had not acted in the best interest of the applicant ( procedural fairness issue ) as mentioned in the affidavit attached here with.

15. In relation to the proposition that the Tribunal was required to act in the best interests of the applicant, that proposition is misconceived. The Tribunal was required to determine the correct and preferable decision on the information before it in accordance with the relevant statutory criteria. For the first applicant to succeed, the essential criteria was having an approved nomination. The first applicant did not have such an approved nomination, and was on notice by reason of a s 359A letter of that issue. Ground 1, in substance, expresses disagreement with the Tribunal’s decision, and invites impermissible merits review.

16. The Court is not satisfied that the application has raised an arguable case for the relief claimed. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules2001 (Cth).

17. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding seventeen (17) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Dated:       27 September 2021