Akella v Minister for Immigration and Citizenship [2025] FedCFamC2G 1752

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This is an application to review a decision of the Administrative Appeals Tribunal ('Tribunal') made on 6 January 2021. The Tribunal confirmed its earlier decision to dismiss the Applicant's review application under section 362B(1A)(b) of the Migration Act 1958 (Cth) ('Act').
2. For the reasons that follow, I have decided to dismiss the application before the Court.

1. The Applicant is an Indian national. He applied for a Regional Sponsored Migration Scheme (Subclass 187) visa ('visa') on 15 March 2017.
2. On 30 January 2018, the Department of Home Affairs ('Department') wrote to the Applicant. A delegate of the Minister for Home Affairs ('Minister') refused the nomination by PRECIOUS PREMIUM PTY LTD ('nominating employer') listing the Applicant as their nominee. The Applicant was informed of the two options available to him. These included withdrawing his visa application as there was 'no possibility of your application being approved', alternatively, if he did not respond and the visa application was not withdrawn, the visa application would be refused and he could seek an application to the Tribunal for merits review.
3. On 7 March 2018, the delegate refused to grant the Applicant the visa on the basis that he did not satisfy regulation 187.233 of the Migration Regulations 1994 (Cth) ('Regulations'). The visa was refused on the basis that the nomination lodged by the nominating employer which listed the Applicant as their nominee had been refused by the Minister.
4. On 23 March 2018, the Applicant applied to the Tribunal to review the delegate's decision.
5. On 16 November 2020, the Tribunal invited the Applicant and his then representative to appear before it to give evidence and present arguments. The hearing was scheduled to occur by Microsoft Teams video on 2 December 2020.
6. On 25 November 2020, the Applicant's representative wrote to the Tribunal informing it that they no longer acted on behalf of the Applicant. The Applicant then wrote to the Tribunal seeking that the hearing before the Tribunal on 2 December 2020 be postponed due to 'family issues' and 'lack of documents'.
7. On 1 December 2020, the Tribunal wrote to the Applicant and granted his adjournment request, rescheduling the hearing to 18 December 2020.
8. On 18 December 2020, the Applicant did not attend the hearing. The Tribunal dismissed the Applicant's application for review under section 362B(1A)(b) of the Act ('Dismissal Decision').
9. On 1 January 2021, the Applicant wrote to the Tribunal seeking reinstatement of his application for review. In that letter, the Applicant sought to explain his non-attendance at the hearing and stated, inter alia, that he had 'made a request for postponement with solicitor and employer advise'. The Applicant also stated that the 'tribunal made dismissal decision instead of giving response of our second request for postponement' and that 'the tribunal did not consider our second request. application was simply dismissed with out giving regard of our second postpone request'.
10. On 6 January 2021, the Tribunal confirmed its earlier decision to dismiss the review application pursuant to section 362B(1A)(b) of the Act ('Confirmation Decision').
11. Before me, the Applicant relied on his Application and supporting affidavit filed 5 February 2021 and a written statement he had emailed to my associate dated 13 October 2025. Attached to that written statement were transcripts and information from Holmes Institute. The Minister relied on his written outline of submissions filed 1 October 2025. The Minister also prepared a Court Book and a Supplementary Court Book that I have had regard to.

1. The application contains eleven grounds of review. They are reproduced below:
   1. This is an application for judicial review of a decision made by a Tribunal on 6th Jan 2021, I have applied for the merit review of decision of the Minister for Immigration on 7 March 2018 to refuse to grant the visa a Regional Employer Nomination (Permanent) Subclass 187 visa under the Migration Act 1958 (the Act).
   2. My Review application was not assessed according to the law. Under s 338(2)(d) of the Act, as the Minister did not approve the nomination, the nomination by the applicant is a Part-5 reviewable decision. By s347(1)(b)(i), within 28 days after the notification of the decision of the minister, an application can be sent to the AAT, which was done accordingly by the applicant. S348 states that if an application is not properly made, then the tribunal must review application. In that scenario, which was not done.
   3. The Tribunal made an error and did not grant me an extension for the review of the application. A request was made by employer and me to postpone the hearing as the applicant would not be able to produce enough documents and the accountant was not available due to the festive season as well as covid-19.
   4. My employer is a genuine, the company is in regional Australia, and Australian owned company with a good track record. Organisation has applied for nomination for 187 subclass, substantially. I have applied for 187 visa. The company benefits the Australian economy as it supports and provides employment for the local people. Company still requires me for that position.
   5. The Tribunal failed to consider my personal circumstances and to apply the relevant laws correctly. Because of my employer not in the situation to submit the documents of business o the Tribunal, also tribunal has opened the file for hearing in wrong time " COVID-19 , Festive season , end of year just before holidays". Employer has requested the tribunal twice for Hearing reschedule to next year. I have requested the tribunal to reschedule the hearing to Next year ( Feb 2021) it means just one month wasn't granted the tribunal. It is totally harsh to me and employer.
   6. That a breach of the rules of natural justice occurred in connection with the making of the Decision, decision was harsh and seem to me that it was deliberate because of me ( applicant ) and employer were waiting for long time, all of sudden case was opened for hearing before festive season was unjust.
   7. I was denied procedural fairness in connection with the making of the Decision in regards to my dismissal instead of grating the one month extension for to submit the documents.
   8. I request the court examine the matter "procedures that were required by law to be observed in connection with the making of the Decision were not observed".
   9. Overall I and my employer have view that the making of the Decision was an improper exercise by Tribunal in our matter.
   10. the Tribunal failed to consider all the relevant factors and correctly assess my situation and make a decision accordingly.
   11. Therefore the tribunal member made a Jurisdictional error by not considering the essential facts and by not giving correct weight to the matters while assessing the hearing postpone request made by employer and substantially my request to the tribunal.

1. I asked the Applicant to speak to his application. He told me that he had made two requests to the Tribunal to adjourn the hearing of his application before it, but that the Tribunal had proceeded to hear his case and dismiss it. He told me he had been unable to attend the hearing because of the recent loss of his father and because he was not prepared. The Applicant went on to tell me that he had worked hard in Australia, had continued to study, had made a contribution and wanted to continue to make a contribution to Australia.
2. I have little doubt that the Applicant has continued to study and work in Australia. I appreciate that he has made efforts to settle in and contribute. He is to be commended for his approach. Regrettably, however, the Applicant's conduct in these respects is not relevant to the issues the Court is required to determine.
3. The Applicant's submission that 'we' applied to adjourn or postpone the hearing on two occasions and that the Tribunal proceeded to hear the case in his absence and without responding to his requests, bear scrutiny. The Applicant made a similar submission in his letter to the Tribunal dated 1 January 2021 in which he asked the Tribunal to reinstate his application before it. The issue is also raised within Ground 3 of the Grounds of Review.
4. The evidence before the Court is that the Applicant wrote to the Tribunal on 25 November 2020 and asked that the hearing scheduled for 2 December 2020 be postponed. The Tribunal acceded to that request. Save for one matter I will come to, nothing else in the Court Book indicates that the Applicant, who was by this stage unrepresented in respect of his application before the Tribunal (see Court Book 64-66), sought a further adjournment of the hearing before the Tribunal with respect to his application before it.
5. The question of whether the Applicant sought an adjournment of the hearing scheduled for 18 December 2020 becomes less clear, having regard to what the Tribunal said in the Dismissal Decision. There, the Tribunal noted that 'At 5.59pm on Thursday, 17 December 2020, the representative requested a postponement of the hearing based on a requirement to secure documentation' and that request had been considered by the Tribunal and denied. This reference is apt to cause confusion in circumstances where the Applicant was not represented in his matter at that time, and where the evidence contained within the Court Book does not disclose any request by the Applicant for an adjournment.
6. The issue becomes clearer when regard is had to what the Tribunal said in the Confirmation Decision. There, the Tribunal notes at [9] that records confirm the last correspondence from the Applicant was on 25 November 2022 (his request for an adjournment of the hearing on 2 December 2020) and further that there had been a request 'for a second postponement of a hearing pertaining to the nominating sponsor' (at [10]). The Tribunal then sets out its correspondence with the representative of the nominating employer in which it refused the request by the nominating employer to adjourn the hearing scheduled for 18 December 2020. The correspondence set out at [10] of the Confirmation Decision pertains only to the hearing scheduled to be conducted in respect of the application by the nominating employer, not the hearing in respect of the Applicant's application.
7. Having regard to the matters above, I find as follows. First, the Applicant made only one request for an adjournment of the hearing of his application before the Tribunal which was acceded to by it. Second, a very late request for an adjournment of a hearing on 18 December 2020 was made by the nominating employer with respect to the nominating employer's matter. Third, the request for an adjournment made by the nominating employer on 17 December 2020 was considered by the Tribunal and the request was refused by the Tribunal. Fourth, in the circumstances, I do not accept that the Tribunal failed to consider a request by the Applicant to adjourn the hearing in respect of his application before it on 18 December 2020.
8. I now turn to the grounds of review.
9. Grounds 6, 8, 9, 10 and 11 are unparticularised. I gave the Applicant an opportunity to address or elaborate on the Grounds of Review and he did not do so. These grounds remain unparticularised. That is a sufficient basis upon which to dismiss the Application: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
10. Grounds 1 and 4 are not proper Grounds of Review. They contain recitation of asserted fact and do not identify any error. These grounds are dismissed.
11. Grounds 2, 5, 6, 7, 10 and 11 appear to allege that the Tribunal failed to afford procedural fairness to the Applicant. By Ground 2, the Applicant complains that the Tribunal did not review his application. By Ground 5, the Applicant complains that the Tribunal failed to consider his personal circumstances and failed to apply the laws and grant him an adjournment. By Ground 6, the Applicant complains of a breach of the rules of natural justice because he was waiting for his review application for a long time and it was suddenly brought on during the festive season. By Ground 7, the Applicant complains of a denial of procedural fairness. By Ground 10, the Applicant says the Tribunal failed to consider all relevant factors and to assesses his situation and make a decision. By Ground 11, the Applicant contends, inter alia, that the Tribunal failed to consider essential facts while assessing the hearing adjournment request.
12. I have already outlined and dealt with the Applicant's complaint that the Tribunal failed to grant him an adjournment or postpone the hearing. The Applicant was granted an adjournment on the first occasion he asked for it. He did not make a further request for an adjournment in respect of his application before the Tribunal.
13. The Applicant's complaint that the Tribunal did not review his application cannot be sustained. Section 362B(1A) of the Act permitted the Tribunal to dismiss the application without considering it further in circumstances where the Applicant failed to appear at the hearing.
14. The Applicant's complaint that his personal circumstances and other matters raised by him were not considered by the Tribunal also cannot be sustained. The Tribunal granted him an adjournment of the hearing scheduled for 2 December 2020 on account of his request, based on his circumstances. To the extent it is relevant, the Tribunal considered and refused an adjournment sought by the nominating employer on 17 December 2020. The information provided by the Applicant to the Tribunal in support of his reinstatement application was clearly considered by the Tribunal in deciding whether to confirm the Dismissal Decision. The Tribunal set out the relevant information provided by the Applicant in support of his reinstatement application in the Confirmation Decision.
15. A review of the material causes me to conclude that the Tribunal otherwise complied with the procedural fairness obligations cast upon it. The invitation sent to the Applicant on 1 December 2020 complied with the various requirements set out in sections 360 and 360A of the Act.
16. It is relevant to note that the Tribunal went beyond what was required of it. The Tribunal sent SMS hearing reminders to the Applicant reminding him of the hearing on 11 December 2020 and 17 December 2020. The Tribunal also recorded in the Dismissal Decision that it endeavoured to contact the Applicant during the hearing but was not successful.
17. There is nothing unreasonable about the actions of the Tribunal. The actions of the Tribunal were not procedurally unfair. The Tribunal was entitled to proceed as it did. Accordingly, Grounds 2, 5, 6, 7, 10 and 11 are dismissed.
18. Finally, under Grounds 3 and 11, the Applicant appears to complain about the refusal of the Tribunal to grant the sponsor a postponement of the sponsor's hearing. This is a matter about which the Applicant cannot complain. He is not a participant in whatever proceedings the sponsor may have on foot.
19. The Applicant has not persuaded me by his oral submissions or his grounds of review that the Tribunal has committed any jurisdictional error. In the event that I am wrong about that, however, I would observe and add that even if the Applicant was able to demonstrate error on the part of the Tribunal, it would be futile to remit the proceedings to the Tribunal. The Applicant was not granted a visa because there was not an approved nomination as required by clause 187.233 of the Regulations. It has always been the case and remains the case that there is not an approved nomination. Even if the matter were remitted the Tribunal, the Tribunal would be bound to reach the same conclusion and confirm the decision under review because no approved nomination exists.
20. For all of these reasons, the Applicant's Application must be dismissed.
21. The Applicant has been entirely unsuccessful in his case. The Minister seeks costs in the amount of $5,000. The costs sought are less than the amount set out in the scale of costs in Schedule 2, Part 3, Division 1, item 3 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). I will make an order as sought by the Minister.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.