Reyat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 406
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Reyat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 406
File number(s): ADG 49 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 23 May 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizens of India - Regional Employer Nomination (class RN) Regional Employer Nomination (subclass 187) – decision to affirm refusal of visa
PRACTICE AND PROCEDURE – Where no appearance by applicant – where applicant has indicated to Court their desire to discontinue application – where no contact made by applicant following expressing desire to discontinue – leave granted to discontinue
Legislation: Migration Act 1958 (Cth) ss 140, 476
Federal Circuit and Family Court (Division 2) (General , Federal Law) Rules 2021 (Cth) rr 1.07, 13.03
Division: Division 2 General Federal Law Number of paragraphs: 5 Date of hearing: 23 May 2022 Place: Perth Applicants: No appearance by or for the Applicants Counsel for the First Respondent: Ms C Allen via CISCO Webex Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 49 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KULJIT SINGH REYAT
First Applicant
GURPREET KAUR REYAT
Second Applicant
VIVRAAJ SINGH REYAT
Third 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:
23 MAY 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.Pursuant to r 13.03(1) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”), the Applicants be granted leave to discontinue the originating application filed on 8 February 2019, dispensing with the requirement to file a Notice of Discontinuance pursuant to r 1.07(1) of the GFL Rules.
3.The Applicants pay the First Respondent’s costs in the sum of $3930 by 23 June 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from the transcript)JUDGE LUCEV
Before the Court is an application under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) on behalf of the applicants, by the First Applicant, Mr Kuljit Singh Reyat, filed 8 February 2019 for an application for judicial review (“Judicial Review Application”) in relation to a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) of 31 January 2019. That Tribunal Decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to cancel the Regional Employer Nomination (class RN) (subclass 187) (“187 Visa”) on 2 November 2017.
The Second and Third Applicants are Mr Reyat’s wife and child respectively, and their positions in relation to the 187 Visa are dependent upon the grant or refusal of Mr Reyat’s 187 Visa: Migration Act s 140(1). For convenience, all the Applicants will hereafter generally only be referred to by reference to the First Applicant, Mr Reyat.
The originating application contains a bare assertion of jurisdictional error and no more. The response from the Minister’s solicitors asserts that there is no jurisdictional error in the Tribunal Decision. The matter came before Registrar Parkyn in the Adelaide Registry of the Court on 26 April 2019, and Registrar Parkyn made orders, including orders for the filing of submissions by Mr Reyat and the First Respondent, but also for there to be a directions hearing on 12 June 2020. For reasons which are not apparent from either the electronic Court file or the notice of adjournment sent out from the Adelaide Registry on 31 December 2019, the directions hearing in the matter on 12 June 2020 was adjourned, or vacated, more correctly, and it was indicated to the parties that a new date for hearing would be advised in due course.
Nothing further happened on the matter until Monday of last week, being 16 May 2022, when the matter was reallocated to the Court as presently constituted to progress the matter. Following that, a notice of listing for a directions hearing this morning was forwarded to the parties with instructions to enable the parties to be brought into the matter by video link. In response to that notice of listing, there has been an email this morning from Mr Reyat in which he indicates that he wishes to “withdraw [his] file,” and that he left the country in November 2020. In response, the Court has indicated to Mr Reyat that he could still join this morning’s directions hearing by video link even though he is overseas. There have been endeavours to contact him in that regard, and he has not responded, and he has not called in to the video link.
In those circumstances, the Court is satisfied, and the Minister has indicated concurrence with this course, that there should be orders that Mr Reyat be granted leave to discontinue the originating application, dispensing with the requirement to file a notice of discontinuance; those two things being done pursuant to rr 13.03(1) and 1.07(1) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) respectively. In the circumstances, it is also appropriate that the Minister’s costs be awarded in the sum of $3930, being the amount prescribed by the relevant part of the relevant costs schedule.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 24 May 2022
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