Sidhu v Minister for Home Affairs

FEDERAL COURT OF AUSTRALIA

Sidhu v Minister for Home Affairs [2019] FCA 656

Appeal from:

Application for leave to appeal: Sidhu & Ors v Minister for Immigration and Anor [2018] FCCA 1255

File number:

VID 450 of 2018

Judge:

BROMBERG  J

Date of judgment:

14 May 2019

Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal interlocutory judgment of the Federal Circuit Court – where applicants failed to demonstrate that the primary judge’s reasons are attended with sufficient doubt to warrant the grant of leave to appeal – application dismissed

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 44.12(1)(a), 44.12(2)

Federal Court of Australia Act 1976 (Cth), s 24(1A)

Cases cited:

Ashby v Slipper (2016) 241 FCR 55

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Date of hearing:

15 April 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

10

Counsel for the Applicants:

The Applicants appeared in person assisted by an interpreter

Solicitor for the First Respondent:

Ms S Roberts of Mills Oakley

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice, save as to costs

ORDERS

VID 450 of 2018

BETWEEN:

BALJEET KAUR SIDHU

First Applicant

GURPAL SINGH SINDHU

Second Applicant

MASTER DEEPINDER SINGH SIDHU

Third Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	BROMBERG  J
DATE OF ORDER:	14 MAY 2019

THE COURT ORDERS THAT:

1.The applicants’ application for leave to appeal is dismissed.

2.The applicants pay the first respondent’s costs of that application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1. This is an application for leave to appeal the judgment of the Federal Circuit Court of Australia delivered on 16 April 2018 and published as Sidhu & Ors v Minister for Immigration and Anor [2018] FCCA 1255. The primary judge dismissed an application which sought the judicial review of a decision of the second respondent (“Tribunal”) made on 21 April 2017, affirming a decision of the delegate of the first respondent (“Minister”) to refuse to grant the applicants’  Employer Nomination (Permanent) (Class EN) visas (“visas”).

2. As the primary judge recorded at [2] of her reasons, orders were made by consent listing the applicants’ application for judicial review for a show cause hearing. Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) provides that at a show cause hearing, the Federal Circuit Court may “if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application”. Given that the primary judge dismissed the applicants’ application pursuant to r 44.12(1)(a) and because r 44.12(2) of the Federal Circuit Court Rules specifies that such a dismissal is interlocutory in nature, the applicants require leave to appeal: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

3. For the…