Arora v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1130
•10 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arora v Minister for Immigration and Citizenship [2025] FedCFamC2G 1130
File number(s): MLG 987 of 2023 Judgment of: JUDGE CORBETT Date of judgment: 10 July 2025 Catchwords: MIGRATION – Regional Employer Nomination (Subclass 187) visa – Application for review of Registrar - Whether an extension of time should be granted – Whether reasonable prospects of successful prosecution of application for judicial review - Application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) cl 187.233
Cases cited: AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Kaur v Minister for Immigration and Border Protection [2016] FCA 518
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission/s: 10 July 2025 Date of hearing: 10 July 2025 Place: Melbourne Solicitor for the Applicant: The applicant appeared via video link, self-represented Solicitor for the Respondents: Mr R O'Shannessy, Mills Oakley ORDERS
MLG 987 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAYANK ARORA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
10 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’;
2.The name of the second respondent is amended to ‘Administrative Review Tribunal’;
3.The application for review filed 24 June 2025 be dismissed;
4.The orders of the Registrar made 5 June 2025 are affirmed; and
5.The applicant pay the first respondent's costs and disbursements of and incidental to the application for review fixed in the sum of $1,500.00.
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
(Revised from transcript)JUDGE CORBETT
These are the reasons for judgment delivered ex tempore on 10 July 2025, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor matters to reflect the intention of the Court.
This is an application for review of orders made by a Registrar of this Court on 5 June 2025. The Registrar summarily dismissed the applicant's application for judicial review which was filed with this Court on 2 June 2023. The Registrar exercised the delegated power to dismiss the application for judicial review pursuant to r 13.13(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). The Registrar did so on the basis that the application for judicial review had no reasonable prospects of success. The Rules provide that an application for review of a Registrar's decision must be made within seven days of the exercise of the delegated power of the Registrar (r 21.02(1) of the Rules).
The application for review was not made within seven days of the orders made on 5 June 2025. The application was lodged with the Court on 24 June 2025, which was eleven days late. Without an extension of time, the application for review is incompetent (see AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 at [6]). Therefore, the applicant must seek an extension of time pursuant to r 21.02(2) of the Rules.
The Court may extend time if it is necessary and in the interests of justice to do so. When considering the interests of justice, the Court may have regard to the explanation for the delay, any prejudice suffered by the respondents, and the merits of the substantive application for judicial review (see Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at [18]–[23]; and SZTES v Minister for Immigration and Border Protection [2015] FCA 719 per Wigney J).
As the applicant was self-represented, the Court allowed him to make an oral application for an extension of time. The Court asked the applicant to explain the reasons for the delay in making the application and also to address the merits of his substantive application for judicial review. Before the Court entertained the application, the Court confirmed with the applicant that he had received a copy of the Court Book and the Minister's outline of written submissions dated 19 May 2025, upon which the Minister intended to rely. The applicant was also provided with copies of the affidavits upon which the Minister sought to rely in prosecuting the application for summary dismissal and in respect of the applications made to this Court today.
The Court also explained that the role of the Court is to review the decision of the Tribunal for jurisdictional error. The Court, including the Registrars of the Court, cannot grant the applicant a visa, but must review the Tribunal decision for material jurisdictional error, which is an error such as an error of law, a failure to consider relevant facts, or whether the decision to dismiss was unreasonable. The Court may only send a decision back to the Tribunal to be decided according to law, and cannot substitute its own decision on the applicant's application for the visa. Therefore, the applicant must show and persuade the Court that there was an error by the Tribunal in order for an application for judicial review to succeed, and that there is merit in extending time within which to bring an application for review.
The applicant explained the reason for his delay as follows; firstly, he did not know of the rule that required the application for review to be filed within seven days and secondly, he asked a friend about what to do after the Registrar's decision who told him that he had at least 28 days to file the application. That explanation was not contained in an affidavit, but the Court accepts that that is the applicant's candid explanation for what occurred.
The Court then asked the applicant to explain the merits of the application for review and to identify why the Tribunal erred in making the decision to affirm the delegate's decision not to grant the applicant a Regional Employer Nomination (Subclass 187) visa (visa). The Court took the applicant to the decision in the Court Book and explained the Tribunal's reasoning that the applicant was not eligible for the visa, in particular, the failure to comply with cl 187.233 of the Migration Regulations 1994 (Cth) (Regulations).
The reason why the Tribunal affirmed the decision of the delegate was because the nominating employer, Dizon Pty Ltd, had not been approved by the Minister and therefore the applicant's application for the visa must be rejected. The Tribunal could not grant the visa without compliance with the requirements of cl 187.233 of the Regulations.
The Court also directed the applicant's attention to the grounds of review in the application for judicial review filed with this Court on 2 June 2023. Those grounds were (verbatim):
The tribunal failed to act according to the substantial justice and merits of the case. In breach of s353B of the Migration Act 1958 and/or failed to act in a way that is fair and just, in breach of s357A(3) of the Act.
The Tribunal misunderstood and/or misapplied the applicable law or has otherwise failed to rely exclusively on relevant facts and information. The tribunal took into account irrelevant material and considered irrelevant facts, information and material.
The applicant submitted that he filed the application for judicial review because he sought the assistance of this Court and the Tribunal to force his Sponsor to file the necessary documents required to obtain approval and the visa which is the subject of this application. He said that he had submitted everything he could to support the application but that his employer would not respond to his request for further documentation, and therefore he applied to the Tribunal to get help and have the Tribunal look into it. The employer did not respond, and the Tribunal could not, and did not, help him with seeking the necessary documents.
When asked to explain the two grounds of review in his application, the applicant could not assist the Court. He did not know of the sections of the Migration Act 1958 (Cth) (Act) referred to in the application and did not know what material facts the Tribunal had either failed to consider, or considered which were irrelevant.
The Minister opposed the extension of time. Mr O'Shannessy, who appeared on behalf of the Minister, submitted that there was no satisfactory explanation for the delay and that the application for judicial review was without merit because:
(a)In relation to ground number one, there was no breach of s 353B or s 357A(3) of the Act;
(b)Ground two of the application for judicial review lacked proper particulars and did not identify the relevant material or facts considered by the Tribunal, or the facts that should have been considered by the Tribunal but were not; and
(c)The application for judicial review was futile because there was no approved nomination by the sponsoring employer and the Tribunal was bound to reach the conclusion that it did.
It was submitted that the finding that the applicant did not meet the criteria in sub-cl 187.233 of the Regulations was inevitable.
In the outline of written submissions dated 19 May 2025, the Minister referred to the decision of Barker J in Kaur v Minister for Immigration and Border Protection [2016] FCA 518 at [6] to support the argument of futility. It was submitted that the application for judicial review has no prospects of success, and that the Registrar correctly summarily dismissed it pursuant to r 13.13 of the Rules.
Mr O'Shannessy also tendered an affidavit of his instructing solicitor Mr Rossi, affirmed on 10 July 2025, which annexed an extract from the ASIC database obtained on 9 July 2025 which indicated that a strike-off action was in progress in relation to the company Dizon Pty Ltd, and that this added to the futility of any remittal to the Tribunal for reconsideration of the applicant's application for the visa.
I am not satisfied that it is necessary and in the interests of justice to grant an extension of time to bring this application for review of the Registrar's orders. Firstly, the explanation for the delay given by the applicant is unsatisfactory. I accept that he may not have understood the Rules and that he may have been poorly advised by his friend as to the time within which to bring the application, however, the authorities are clear that ignorance of the Rules is not a valid excuse for non-compliance. Secondly, I am not prepared to grant an extension of time because the application for judicial review has no reasonable prospects of success, and the Registrar was correct to summarily dismiss it under r 13.13 of the Rules.
At the time of the hearing before the Tribunal and the decision of the Tribunal made 1 May 2023, the proposed employer, Dizon Pty Ltd, was not approved by the Minister, and the applicant did not meet the statutory requirements for the visa. The Tribunal was bound to reach the conclusion which it did. Even if an extension of time was granted to the applicant to bring this application for review, the merits of the underlying application for judicial review have no reasonable prospects for success. A fresh hearing of the application would result in the same outcome, namely that the application for judicial review should be dismissed. There are no reasonable prospects of successfully prosecuting the application for judicial review.
Whilst the power to grant summary dismissal must be exercised with caution, this is a case where no jurisdictional error is apparent from the Tribunal's decision and the applicant could not identify one. The Tribunal had no power to waive the requirements of sub-cl 187.233 of the Regulations and the applicant did not satisfy the criteria in that clause of the Regulations.
The Court has also scrutinised the decision for error and none is apparent in the Tribunal's reasoning.
At the conclusion of the submissions on behalf of the Minister made by Mr O'Shannessy, he sought the costs and disbursements of and incidental to the application for review in the sum of $1,500.00. That sum is both fair and reasonable given the circumstances of this case. An order will be made to that effect.
ORDERS
The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.
The name of the second respondent is amended to ‘Administrative Review Tribunal’.
The application for review filed 24 June 2025 be dismissed.
The orders of the Registrar made 5 June 2025 are affirmed.
The applicant pay the first respondent's costs and disbursements of and incidental to the application for review fixed in the sum of $1,500.00.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 21 July 2025
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