Kumar v Minister for Home Affairs - [2019] FCCA 1594

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1594

Catchwords:
MIGRATION – Temporary Work (Skilled) (subclass 457) visa – review of decision of Administrative Appeals Tribunal – where applicant failed to appear at Tribunal hearing – where remittal would be futile in any event – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.5, div.5, ss.360A, 362B, 362C, 379A, 476

Migration Regulations 1994 (Cth), cl.457.223
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)

Cases cited:

AYT16 v Minister for Immigration & Border Protection [2017] FCA 252
AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
MZALO v Minister for Immigration & Border Protection (2016) 70 AAR 495
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant:

ROMAS KUMAR

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 398 of 2018

Judgment of:

Judge Kendall

Hearing date:

10 June 2019

Date of Last Submission:

10 June 2019

Delivered at:

Perth

Delivered on:

11 June 2019

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Mr T Lettenmaier

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore

ORDERS (as made 10 June 2019)

The application be dismissed.
Formal written reasons for judgment be published by Chambers at a later date.
The applicant pay the first respondent’s costs in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 398 of 2018

ROMAS KUMAR

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 10 June 2019, this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court.
Having heard the parties, the Court ordered that:
1. The application be dismissed.
2. Formal written reasons for judgment be published by Chambers at a later date.
3. The applicant pay the first respondent’s costs fixed in the sum of $5,000.
What follows are the formal written Reasons for Judgment referred to in order 2 of the orders made by this Court on 10 June 2019.

Background

By application filed in this Court on 20 July 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal) dated 28 June 2018.
The applicant had applied to the Tribunal for review of a decision of the delegate of the now Minister for Home Affairs (the “Minister) to not grant the applicant a Temporary Work (Skilled) (subclass 457) visa (the “visa”).
On 28 June 2018, the Tribunal dismissed the applicant’s application pursuant to s.362B(1A)(b)…

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: [2019] FCCA 1594
Decision Date: 11 June 2019

CaseChat Overview and Summary

The applicant, Mr. Kumar, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning his Temporary Work (Skilled) (subclass 457) visa. The AAT had affirmed the Minister for Home Affairs' decision to refuse to grant the visa. Mr. Kumar failed to appear at the scheduled AAT hearing.

The primary legal issue before the Federal Court was whether the AAT had committed a jurisdictional error in its handling of Mr. Kumar's application. Specifically, the court considered whether the failure of Mr. Kumar to attend the hearing, and the AAT's subsequent decision without his participation, constituted a reviewable error.

Kendall J found that there was no jurisdictional error. The court reasoned that the applicant had been given notice of the hearing, and his failure to attend meant the Tribunal was entitled to proceed with the review in his absence. Furthermore, the court noted that even if the matter were remitted, it would be futile given the circumstances. Consequently, the application for judicial review was dismissed.

Orders