Ismail v Minister for Immigration and Citizenship (No 2)

Case [2025] FedCFamC2G 1572

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ismail v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1572

File number: SYG 2137 of 2023
Judgment of: JUDGE MCCABE
Date of judgment: 26 September 2025
Catchwords: MIGRATION – Application for review of a registrar’s decision – employer nomination visa – whether the registrar erred in dismissing the applicant’s application for judicial review – whether the application for judicial review has reasonable prospects of success – where there was no valid employer nomination before the Administrative Appeals Tribunal – application for review of a registrar’s decision dismissed – orders of the judicial registrar affirmed.   
Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2)

Migration Act 1958 (Cth) ss 359A, 425, 425A, 476

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13(a)

Migration Regulations 1994 (Cth) cl 186.233 of sch 2
Cases cited:

Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105

Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Division: Division 2 General Federal Law
Number of paragraphs: 24
Date of hearing: 18 August 2025
Place: Sydney
Applicant: The applicant appeared by Webex
Solicitor for the first respondent: Ms N Chandra (Hicksons, Hunt & Hunt Lawyers)
Second respondent: Submitting appearance, save as to costs

ORDERS

SYG 2137 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BASSAM ISMAIL

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE MCCABE

DATE OF ORDER:

26 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The application filed 24 July 2025 for the review of orders made by a judicial registrar on 1 July 2025 is dismissed.

2.The orders made by a judicial registrar on 1 July 2025 are affirmed.

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 typographic, clerical 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 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

REASONS FOR JUDGMENT

JUDGE MCCABE:

  1. Mr Ismail is a cabinet-maker. His skills appear to be in demand in Australia. On 14 February 2020, he applied for an Employer Nomination (Permanent) (Class EN) (subclass 186) visa. As the name suggests, this category of visa is potentially available to a person who has been nominated to a position by an employer. And therein lies the problem: the employer nomination of Mr Ismail was rejected in a separate process by a delegate of the minister, the first respondent in these proceedings. Without a valid employer nomination for Mr Ismail and his position, the delegate (and the Administrative Appeals Tribunal on review) concluded Mr Ismail…

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AGLC
Ismail v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1572
Case
[2025] FedCFamC2G 1572
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Ismail v Minister for Immigration and Citizenship (No 2) involved an application for review of a decision by the Registrar to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT). The applicant, Mr Ismail, sought a visa under the employer nomination stream, which required an approved nomination from a nominated business. The Tribunal had previously affirmed a decision to reject the nomination by B&B Decorators Pty Ltd, the applicant's nominated business. The Tribunal subsequently affirmed the delegate's decision to refuse Mr Ismail's visa application on the grounds that there was no valid nomination in place at the time of the decision. Mr Ismail sought judicial review of the Tribunal's decision, which was dismissed by the Registrar. The applicant then sought review of the Registrar's decision by the Court.

The central legal issue was whether the Registrar erred in dismissing the applicant's application for judicial review of the Tribunal's decision. Specifically, the court needed to determine whether the application for judicial review had reasonable prospects of success and whether there was jurisdictional error in the Tribunal's decision. The applicant argued that the Tribunal had failed to consider certain evidence and had erred in its interpretation of the Migration Regulations. The Minister for Immigration and Citizenship contended that the application for judicial review had no reasonable prospects of success and that the Tribunal's decision was correct as there was no valid nomination before it at the time of the decision.

The court found that the applicant's arguments failed to address the fundamental issue: there was no valid employer nomination at the time of the decision or subsequently. The court noted that even if jurisdictional error were identified, it was unlikely that the Court would exercise the discretion to provide relief because the Tribunal was bound to reach the same decision. The court was satisfied that the application for judicial review had no reasonable prospects of success and affirmed the Registrar's decision to dismiss the application. The court concluded that the application for review of the Registrar's decision was dismissed, and the orders of the Registrar were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

That said, I turn to the application for a visa in this case. THE BACKGROUND Mr Ismail’s application for the visa in question is reproduced in exhibit one (the court book) at pp 33ff. The minister’s department subsequently confirmed it had received an employer nomination from B&B Decorators Pty Ltd. On 4 August 2020, the department wrote to Mr Ismail to advise him the delegate had since refused the employer nomination. The letter asked Mr Ismail to comment on that news. B&B Decorators applied to the Tribunal for review of the delegate’s decision on 21 August 2020. That review was finalised on 9 November 2023 when the Tribunal decided to affirm the delegate’s decision to reject the nomination. B&B Decorators did not seek judicial review of that decision. In the meantime, a delegate of the minister considered Mr Ismail’s application for a visa. The delegate refused the visa because there was no valid employer nomination at the time the decision was made. The delegate’s decision and statement of reasons are dated 7 January 2021. They are reproduced in the court book at pp 65-66. Mr Ismail applied to the Tribunal seeking review of the delegate’s decision to refuse the visa. The Tribunal invited the applicant to attend a hearing listed for 26 October 2023. The Tribunal rescheduled the hearing to 9 November 2023 to accommodate the applicant’s travel commitments. Neither the applicant nor his representative attended the relisted hearing. The Tribunal wrote to the applicant and his representative on 15 November 2023 – after the date of the relisted hearing – to invite comment on potentially adverse information. The request for comment was made pursuant to s 359A of the Migration Act 1958 (Cth) (the Migration Act). A copy of the letter is reproduced in the court book at pp 133ff. The letter confirmed the Tribunal had separately decided to affirm the delegate’s decision to refuse the nomination by B&B Decorators. The Tribunal asked for comment on this formal development by 29 November 2023. The applicant did not respond. The Tribunal’s decision to affirm the delegate’s decision to refuse the application for a visa is dated 30 November 2023. A copy of that decision is reproduced in the court book at pp 23ff. In its statement of reasons, the Tribunal records the history of its interactions with the applicant and his representative in advance of the relisted hearing. The Tribunal also records writing to the applicant pursuant to s 359A of the Migration Act. It then proceeds to the substance of the case. After summarising the effect of cl 186.233 of sch 2 to the Regulations, the Tribunal found (at [17]-[18]): 17. The Department on 4 August 2020, refused the nomination application lodged by the nominating business and the delegate’s decision was affirmed by the Tribunal on 9 November 2023. Therefore, there is no approved nomination to satisfy cl.186.233(2) and the primary applicant does not meet cl.186.233.18. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.THE APPLICATION FOR JUDICIAL REVIEW

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant’s grounds (and Mr Ismail’s submissions at the hearing) failed to grapple with the fatal flaw at the heart of this case: there was no valid employer nomination in place at the time of the decision or subsequently. That meant the Tribunal had no alternative but to decide as it did because the applicant could not satisfy the requirement in cl 186.233. For the reasons explained by the Full Court in Singh (at [88]), that was effectively the end of the matter. Even if I were able to identify jurisdictional error as contended by the applicant, it would be most unlikely that the Court would exercise the discretion to provide relief because the Tribunal was bound – and would be bound on remittal – to reach the same decision.CONCLUSION I am satisfied the applicant has no reasonable prospects of successfully prosecuting the application for review. There is very little chance of him establishing the Tribunal’s decision was affected by jurisdictional error if he were allowed to proceed to a hearing. In the unlikely event that he were to identify an error, there is very little chance that the Court would exercise the discretion to provide relief given a further hearing in the Tribunal would almost certainly be futile. In those circumstances, the decision of the judicial registrar to summarily dismiss the application for judicial review pursuant to r 13.13(a) of the Rules must be affirmed. I will hear from the parties as to costs.

Ratio Decidendi

Legal Principle Established

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