Singh v Minister for Immigration

[2018] FCCA 3481

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3481

Catchwords:
MIGRATION – Employment visa – applicant fails to file submissions – hearing fixed by consent of parties 11 months beforehand – applicant seeks adjournment of hearing on day prior to hearing – adjournment refused – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.13.03C(1)(c)
Migration Act 1958 (Cth), ss.65, 476

Migration Regulations 1994 (Cth), cl.186.223

Applicant: NAVJOT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINSTRATIVE APPEALS TRIBUNAL

File Number: MLG 1106 of 2017

Judgment of: Judge A Kelly

Hearing date: 27 November 2018

Date of Last Submission: 27 November 2018

Orders pronounced: 27 November 2018

Delivered at: Melbourne

Delivered on: 30 November 2018

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr White

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application filed on 26 May 2017 be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The applicant pay the costs of the first respondent fixed at $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1106 of 2017

NAVJOT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINSTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By application filed on 26 May 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 April 2017 affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65(1)(a) of the Migration Act 1958 (Cth) (Act).

2. The applicant, a 29 year old citizen of India, first arrived in Australia on 16 November 2008 as the holder of a student visa.  In 2011, the applicant was granted a further student visa, and in 2012 the applicant was granted a Temporary Work (Skilled) (subclass 457) visa.

3. On 9 July 2014, the applicant lodged an application for Permanent Employer Sponsored or Nominated Visa. The applicant was represented by a registered migration agent throughout his application process.

4. On 4 July 2016, the Department sent the applicant a letter inviting him to comment on information for an Employer Nomination (subclass 186) visa. The letter stated that the nomination submitted by the applicant’s sponsor had been refused.

5. The applicant did not respond to the invitation to comment.

6. On 2 August 2016, the delegate refused the visa application. The delegate found that as the nomination appointment had been refused, the applicant did not satisfy cl 186.223 of the Migration Regulations 1994 and accordingly that the criteria for the grant of the visa were not met.

7. On 19 August 2016, the applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision. The applicant was represented in his merits review application by the same registered migration agent.

8. By letter dated 6 March 2017, the applicant was invited to attend a hearing before the Tribunal on 21 April 2017 to give evidence and present arguments relating to the decision under review.

9. On 29 March 2017, the applicant’s migration agent emailed the Tribunal requesting that the hearing date be postponed as the migration agent was pregnant and would be away on maternity leave on the hearing date.  The Tribunal decided not to grant the request.

10. On 20 April 2017, the applicant’s migration agent emailed submissions to the Tribunal.

11. Both the applicant and his migration agent appeared at the hearing via telephone link.

12. On 28 April 2017, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

13. The Tribunal affirmed the Delegate’s decision on the substantive basis that the Department had refused the employer nomination (which had been lodged by Maidstone Pty Ltd), a fact acknowledged and confirmed by the applicant and his representative in the course of the hearing.  It was further noted that the Department had barred Maidstone Pty Ltd as a sponsor until May 2021.  As the Minister had not approved Maidstone Pty Ltd as a sponsor, the criteria for the application were not met.

Procedural history

1. On 26 May 2017, the applicant filed an application in this Court for judicial review of the decision made by the Tribunal. The applicant sought an order that the respondent show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the Tribunal’s decision made on 28 April 2017.

2. On 25 May 2017, the applicant swore an affidavit in support of his application which exhibited a copy of the Tribunal’s decision but which did not otherwise adduced any evidence in support of the application for judicial review.

3. By Response filed on 9 June 2017, the Minister stated that the applicant: (1) failed to properly invoke the Court’s jurisdiction, (2) failed to raise an arguable case for the relief claimed; (3) invited an impermissible merits review; and (4) failed to establish any jurisdictional error.  The Minister sought that the matter be listed for a show cause hearing.

4. On 20 December 2017, orders were made, by consent, listing the matter for show cause hearing on 27 November 2018.

5. By that Order, the applicant was afforded the opportunity to file any amended application with proper particulars, any supplementary court book and written submissions in support of the application. The applicant has not taken the opportunity provided by that Order to file any further material.

6. On the day before the appointed hearing the applicant communicated with the court informing it that he had travelled overseas on account of his father’s apparent illness.  He sought, in effect, an adjournment.

7. The ex parte application was opposed by the Minister.

8. The applicant did not appear at the appointed hearing.  No medical evidence or other documents were produced by way of evidence or otherwise in support of the application.  While the applicant’s emails had attached various documents, they were unopenable.

9. The Minister is entitled to an order that the proceeding be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date:  30 November 2018