Omari v Minister for Home Affairs

[2019] FCCA 1689

FEDERAL CIRCUIT COURT OF AUSTRALIA

OMARI v MINISTER FOR HOME AFFAIRS [2019] FCCA 1689

Catchwords:
MIGRATION – Notification by an officer of the Minister for Home Affair’s Department that the applicant’s application for an Other Family (Residence) (Subclass BU) carer (Subclass 836) visa was invalid.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – where applicant is a minor and no litigation guardian orders made – whether interests of justice would be served by an adjournment for the appointment of a litigation guardian – no adjournment granted – application dismissed as incompetent.

Legislation:

Federal Circuit Rules 2001 (Cth) r.44.12

Migration Regulations 1994 (Cth)

Applicant: YESSER EL OMARI

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 1017 of 2019

Judgment of: Judge Emmett

Hearing date: 17 June 2019

Date of Last Submission: 17 June 2019

Delivered at: Sydney

Delivered on: 17 June 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitor for the Respondent: Ms Elizabeth Warner Knight
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1017 of 2019

YESSER EL OMARI

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 26 April 2019, the applicant sought judicial review of a decision of the respondent dated 15 April 2019 refusing the applicant's application for an Other Family (Residence) (Subclass BU) carer (Subclass 836) visa (“Carer’s Visa”).

2. On 15 April 2019, an officer of the respondent’s Department notified the applicant that the application for the Carer’s Visa was invalid as she did not meet item 1123B of Schedule 1 of the Migration Regulations 1994 (Cth) (“the Regulations”).

3. At the commencement of the hearing this morning, I was informed by the solicitor for the respondent that the applicant does not turn 18 until 1 January 2002 and is presently a minor in respect of whom no litigation guardian has been appointed.

4. The applicant's sister, who attended Court with the applicant today and is the person in respect of whom the Carer's Visa would operate, was a person who may have been a potential litigation guardian. However, on exploring that possibility with this person it became apparent this person, although an Australian citizen, has no assets in Australia and would be unable to pay any costs order that may be awarded against her today in the event that the applicant was unsuccessful in her judicial review application. I was also not satisfied that she fully understood the nature of the obligations of a litigation guardian. 

5. The applicant and her sister attended a directions hearing before a registrar of this court on 23 May 2019. On that occasion, the applicant was given leave to file and serve an amended application and any further evidence and submissions in support, and was provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant's own language. However, no litigation guardian orders were sought or made on that occasion.

6. In the circumstances, both the applicant and her sister have been aware, since 23 May 2019, that they had the contact details of legal services providers.

7. The matter was set down today for a show cause hearing pursuant to r.44.12 of the Federal Circuit Rules 2001 (Cth) (“the Rules”) on the basis that the application for judicial review did not disclose an arguable case for the relief claimed.

8. The first respondent filed written submissions and supplementary submissions in relation to the application for judicial review on the basis that the application for judicial review has not raised an arguable case for the relief claimed.

9. The applicant and her sister attended the hearing this morning with the assistance of an interpreter. 

10. The matter was stood down for the first respondent's solicitor to assist the applicant and the sister in understanding the difficulties that the applicant faced in establishing jurisdictional error in relation to the respondent’s decision. Based on those submissions, I am not satisfied that the application for judicial review has raised an arguable case for the relief claimed even if the application was competent.

11. No other person has been identified as a possible litigation guardian for the applicant. In the circumstances, no litigation guardian has been appointed.

12. In the circumstances, I am not satisfied that the interests of justice would be served by an adjournment for the appointment of a litigation guardian.

13. The application to this Court should be dismissed as incompetent.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 19 June 2019