Fatima v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1690
•17 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fatima v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1690
File number: MLG 2609 of 2020 Judgment of: JUDGE CHAMPION Date of judgment: 17 October 2025 Catchwords: MIGRATION – Temporary Business Entry (Skilled) (subclass 457) visa – Where the primary applicant could only meet the mandatory criteria for the grant of a visa if her sponsor’s nomination of an occupation in relation to her was approved – Where her sponsor’s nomination was not approved –Where because the primary applicant was refused the visa a necessary consequence was that other members of her family unit were not granted visas – Application dismissed Legislation: Federal Circuit and Family Court of Australia Act (Cth) ss. 143, 256
Migration Act 1958 (Cth) ss. 140GB, 359A, 476
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2025 (Cth) r. 23.08
Migration Regulations 1994 (Cth) cl. 457.223, 457.321
Cases cited: LPTD v Minister for Immigration (2024) 280 CLR 321; [2024] HCA 12
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Plaintiff M1/2021 v Minister for Home Affairs 275 CLR 582; [2022] HCA 17
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 13 October 2025 Applicants: Self-represented Solicitor for the First Respondent: Mr Rossi of Mills Oakley ORDERS
MLG 2609 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KANEEZ FATIMA
First Applicant
MOHIUDDIN MOHAMMED
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
17 OCOTBER 2025
THE COURT ORDERS THAT:
1.The Applicants’ application for review of the Registrar’s decision made on 28 August 2025 is dismissed.
2.The Applicants pay the First Respondent’s costs fixed in the sum of $800.
AND THE COURT NOTES THAT:
A.The application for review having been dismissed, the order made by Registrar Cummings on 28 August 2025 summarily dismissing the proceedings remains in effect.
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 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).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
The Applicants have filed an application under s. 476 of the Migration Act 1958 (Cth) seeking judicial review of the decision of the (then) Administrative Appeals Tribunal refusing to grant Temporary Business Entry (subclass 457) visas to them.
The Minister has brought an application that the application be summarily dismissed under r. 23.08 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2025 (Cth). The Minister submits that that there is “no reasonable prospect” of the Applicants “successfully prosecuting the proceeding.”
On 28 August 2025, a Registrar of this court acceded to the Minister’s summary dismissal application.
Under s. 256 of the Federal Circuit and Family Court of Australia Act (Cth) (FCFCOA Act), because the Applicants have brought an application for review of the Registrar’s decision, I must conduct a de novo hearing as to the Minister’s summary dismissal application.
Even though the Registrar made orders that they do so, and I permitted that they do so, the Applicants did not file any submissions in opposition to the summary dismissal application before the Registrar or before me.
The Minister’s summary dismissal application is therefore to be decided by reference to the Applicants’ initiating application, the Minister’s submissions before the Registrar, his supplementary submissions before me and the affidavit of Ms Jami Klisaris made on 5 June 2025 (Ex R1) (to which I will return) and reasons in the relevant Tribunal decision.
The Tribunal’s decision to refuse to grant the visa
The Applicants comprise a family unit. Ms Kaneez Fatima (the First Applicant or primary applicant) is married to Mr Mohiuddin Mohammed (the Second Applicant or dependent applicant). I describe Mr Mohammed as a dependent applicant because the grant of a visa to Mr Mohammed depends on his status as a family member of Ms Fatima and the grant of a visa to her. Only Ms Fatima appeared before me although she said she had authority to speak on behalf of her husband, Mr Mohammed.
Both applicants are citizens of India. Previously, there were also proceedings as to the Applicants’ children. The Applicants’ daughter was the Third Applicant and another dependent applicant where visa application depended on the grant of a visa to her mother. On 30 May 2025, the Applicants’ daughter discontinued her application. The Applicants’ minor son commenced a separate application in this court. On 7 May 2025, the Applicants’ minor son’s proceedings were discontinued.
On 19 May 2017, the First Applicant applied for a Temporary Business Entry (subclass 457) visa based on her employment with Barakah Housing Pty Ltd (the sponsor) in the position of Developer Programmer. As the Tribunal noted (TR, [4]):
A nomination of the occupation of Developer Programmer was made by Barakah Housing Pty Ltd in relation to the first named applicant (the applicant) on 17 January 2017. The application was not approved.
[Emphasis added]
The Tribunal had to grant the visa to the primary applicant if satisfied that she met the mandatory criteria and refuse the visa if not so satisfied. One mandatory criterion for the grant of the Temporary Business Entry (subclass 457) visa was that a business sponsor had an approved nomination for an applicant in employment in an occupation.
The mandatory criteria for the grant of the visa were set out in Part 457 of the Migration Regulations 1994 (Cth) (as in force at the relevant time). The requirements also referred to s. 140GB of the Act.
Clause 457.223(4)(a) was as follows:
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
[Emphasis added]
Section 140GB(1)(a)(i) was as follows:
140GB Minister to approve nominations
(1) A person who is, or who has applied to be, an approved work sponsor, or a person who is a party to negotiations for a work agreement, may nominate:
(a)an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant's proposed occupation;
…
Section 140GB(2) sets out the circumstances in which the Minister must approve a sponsor’s nomination.
Under cl 457.223(4)(a)(i) a mandatory condition of the grant of a visa to the primary applicant was the approval of the sponsor’s nomination. The grant of a visa to the primary applicant was tied to and dependent on the approval of the sponsor’s nomination. In the absence of approval of the sponsor’s nomination, the only decision the Tribunal could make was to refuse to grant the primary applicant the visa. Once the Tribunal refused to grant the primary applicant a visa because she did not satisfy the mandatory criterion – namely there being an approved sponsor’s nomination – a necessary consequence was that her family members did not meet the secondary criteria which under cl. 457.321 required a secondary applicant to be a “member of the family unit of a person (the primary applicant) that who, having satisfied the primary criteria is the holder of a Subclass 457 visa”.
On 28 May 2020 – less than one month before it refused to grant the primary applicant the visa – the Tribunal had “affirmed the decision not to approve the nomination made by Barakah Housing Pty Ltd (the nominator) for a Developer Programmer.” (TD, [9]). Under s. 359A of the Act, by letter dated 2 June 2020, the Tribunal gave the Applicants that adverse information – namely the decision not to approve the nomination of Barakah Housing Pty Ltd – for comment or response.
In response to the letter dated The Applicants did not deny that the Tribunal had not approved the sponsor’s nomination but responded that the sponsor had made a judicial review application to this court as to the non-approval. The Applicants requested the Tribunal to “place [their own] application for review on hold until an outcome [was] received from the court” on the sponsor’s judicial review application (TD, [10]).
In its discretion, the Tribunal declined to adjourn the application for an “unknown period” until the judicial review process was completed as to the sponsor’s application and if the sponsor’s application was successful until a further administrative decision was made as to the sponsor’s nomination (TD, [14]).
The Tribunal concluded its reasons for refusing to grant the visa to the primary applicant as follows (TD, [16]–[17]):
16. There is no evidence before the Tribunal of an approved nomination of an occupation relating to the applicant.
17. For these reasons the requirements of cl.457.223(4)(a) are not met and the Tribunal finds that the requirements for the standard business sponsor stream have not been met.
Summary dismissal
Under s. 143(2) of the FCFCOA Act and r. 23.08(a) of the Rules the test for whether the Applicants’ judicial review application ought to be summarily dismissed is whether I am satisfied that the Applicants have “no reasonable prospect of successfully prosecuting the proceeding”. The Minister bears the onus (Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473, [7]). In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [59] a High Court plurality said that, without delimiting the concept, in many cases an applicant will have “no reasonable prospect” if the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”.
In this case, the Applicants’ judicial review application particularises nine grounds as follows:
1.The delegate did not considered all the evidence and supporting documents that was submitted.
2.Delegate did not consider the oral evidence.
3.Did not acknowledge my response.
4.Breach of Natural Justice.
5.The delegate did not give change to justify myself.
6.Did not consider the relevant information that was supposed to be considered.
7.Member did not consider my evidence, proofs and my response.
8.Procedural fairness
9.Unreasonableness.
I accept the Minister’s submissions that grounds 1 and 2 seek judicial review of the delegate’s decision, not the Tribunal’s merits-review decision. I have no jurisdiction to review the delegate’s decision under s. 476(2)(a) of the Act.
Grounds 3, 6 and 7 allege that the Tribunal did not acknowledge the Applicants’ responses, evidence or relevant information. As the High Court plurality said in Plaintiff M1/2021 v. Minister for Home Affairs 275 CLR 582; [2022] HCA 17 at [24] there can be no doubt that a decision-maker must “read, identify, understand and evaluate” each of the arguments and the component integers of arguments the Applicants put forward. The Applicants have not provided any particulars which enable me meaningfully to engage with the allegations that the Tribunal did not acknowledge or sufficiently bring its mind to bear on the Applicants’ responses, evidence or relevant information. In the absence of any particulars, the Minister has proved that the Applicants have no reasonable prospect of success as to these grounds.
Grounds 4 and 8 allege that the Tribunal denied the Applicants procedural fairness. Similarly to Grounds 3, 6 and 7 the Applicants have not provided any particulars which enable me meaningfully to engage with the allegations. In the absence of any particulars, the Applicants had no reasonable prospect of success as to these grounds. As already noted, the Tribunal complied with its procedural fairness obligation under s. 359A of the Act.
As the Minister accurately described it, Ground 9 is “bare assertion” of unreasonableness. Insofar as it is to be understood as an allegation that the Tribunal’s refusal to adjourn the hearing pending the outcome of the sponsor’s judicial review application was unreasonable in legal sense, I frame the issue for my decision as whether the Minister has satisfied me that the Applicants have no reasonable prospect of proving at trial that the Tribunal’s exercise of its discretion to refuse an adjournment lacked an “evident, transparent and intelligible justification” or was outside its area of “decisional freedom” (Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11, [92]). The Minister has satisfied me any such argument the Applicants may make that the Tribunal’s exercise of discretion was unreasonable in the legal sense has no reasonable prospect for success.
Further, if the Applicants’ argument is to be understood as focused on the refusal to adjourn the proceeding, Mr Klisaris’ deposed that in any event on 25 November 2020, the (then) Federal Circuit Court dismissed the sponsor’s judicial review application. There has been no appeal.
Materiality
None of the Applicants’ grounds engage with the fundamental reason the Tribunal refused to grant the visa, namely that the sponsor’s application had not been approved. At trial, the Applicants must establish a material error. The Applicants must prove first, that there has been an error, and second, that there is “a realistic possibility that the outcome of the decision could have been different had that error not been made” (LPTD v Minister for Immigration (2024) 280 CLR 321, [10]). None of Grounds 1-9 – even if proved – would constitute material error because there was no realistic possibility that the outcome could have been different – because the fundamental reason the Tribunal refused to grant the visa was that the sponsor’s application had not been approved.
The Minister has proved that the Applicants’ judicial review application is “untenable,” “groundless” or “faulty” in the sense the plurality used those words in Spencer. The primary applicant’s visa application depended on approval of the sponsor’s nomination. In the absence of that approval, the only decision available to the Tribunal was to refuse to grant the visa to the primary applicant. The Tribunal could not be satisfied that the dependent applicant met the secondary criteria because the primary applicant did not hold the visa. The Applicants have no reasonable prospect of successfully prosecuting the judicial review proceeding.
Conclusion
On my de novo review, I will grant the Minister’s summary dismissal application.
Order and costs
I will dismiss the Applicants’ review as to the Registrar’s decision with the consequence that the Registrar’s summary dismissal of the judicial review application stands.
I will order that the First and Second Applicants pay the First Respondent’s costs fixed in the amount sought of $800.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 17 October 2025
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