Kaur v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1211
•6 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1211
File number(s): MLG 1487 of 2020 Judgment of: JUDGE FARY Date of judgment: 6 August 2025 Catchwords: MIGRATION – application for Employer Nomination Scheme (Subclass 186) visa – where Administrative Appeals Tribunal not satisfied that applicant had a valid nomination as required by cl 186.233(3) – Tribunal found no jurisdiction to hear nomination application – summary dismissal application by Minister dismissed – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed. Legislation: Australian Constitution s 75(v)
Corporations Act 2001 (Cth) s 601AD(1), s 601AH(5)
Migration Act 1958 (Cth) s 47(1), s 65(1), s 359A, s 359AA, s 360, s 363(1)(b), s 474, s 476, s 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 Pt 2 Sch 2
Migration Regulations 1994 (Cth) r. 4.17, cl 186.311(a), cll 186.1 – 186.611, cl 186.233
Dust Diseases Tribunal Act 1989 (NSW) s 12B
Cases cited: Allianz Australia Insurance Ltd v Viksne [2021] NSWCA 268
BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 15
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12
Lee v Minister for Immigration and Citizenship [2007] FCAFC 62
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 2
Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Morgan v McMillan Investment Holdings Pty Ltd [2024] HCA 33; 98 ALJR 1200
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff B9/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCAFC 27
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
RFZD v Commissioner of Taxation [2023] FCA 324
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267
SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579
White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441 (2006) 200 FLR 125
Division: Division 2 General Federal Law Number of paragraphs: 131 Date of last submission/s: 30 July 2025 Date of hearing: 30 July 2025 Place: Melbourne Applicants: Maninder Kaur Lakhwinder Singh Solicitor for the First Respondent: Ms Thompson, HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 1487 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANINDER KAUR
First Applicant
LAKHWINDER SINGH
Second Applicant
JESVICK KAINTH (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
6 AUGUST 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The first and second applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $8,371.30.
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
JUDGE FARY
INTRODUCTION
By way of Application filed on 7 May 2020 (Application), the applicants (Applicants) seek judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 15 April 2020 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the first applicant (Applicant) an Employer Nomination Scheme (Subclass 186) visa (Visa) on the basis that the Applicant did not satisfy cl 186.233(3) of the Migration Regulations 1994 (Cth) (Regulations).
The hearing of the Application took place at the Melbourne Registry of the Court on 30 July 2025 (Hearing). The Minister was represented by a solicitor. The Applicants were self-represented and assisted by a Punjabi interpreter. At the conclusion of the Hearing, judgment was reserved.[1]
[1] Orders made by Judge Fary on 30 July 2025, Order 1.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal fell into jurisdictional error in its decision that the Applicant failed to satisfy cl 186.233 which, namely, requires that the Applicant be subject to an approved nomination, and whether it erred by failing to adjourn the hearing of the Application so that an application could be made for the reinstatement of the nominator specified in the Applicant’s application for a Visa.
BACKGROUND
The Applicants are citizens of India.
Lakhwinder Singh, the second applicant, is the husband of the Applicant. Jesvick Kainth and Devansh Kainth, the third and fourth applicant respectively, are the children of the Applicant and second applicant. The Applicant is appointed litigation guardian of the third and fourth applicant.[2]
[2] Orders made in this Court on 12 August 2020, Order 1.
On 30 June 2017, the Applicants applied for the Visa on the basis that the Applicant was nominated for the position of Graphic Pre-press Trades Worker.[3]
[3] Court Book (CB) 1-19.
On 11 August 2017, a Delegate of the Minister refused the nomination lodged by the nominator, ‘Sum Business Developments’ (Nominator, Delegate’s Nominator Decision).[4]
[4] CB 94.
On 15 August 2017, a Delegate of the Minister invited the Applicant to comment on information related to the refusal of the nomination application.[5]
[5] CB 24.
On 25 August 2017, the Nominator applied to the Tribunal for review of the decision to refuse the nomination (Nominator’s Review Application).[6]
[6] Page 18 at [1] of the Affidavit of Sarah Ainslie Thompson affirmed on 29 May 2025.
On 11 September 2017, the Nominator was deregistered.[7]
[7] CB 174-175.
On 14 September 2017, the Applicants’ representative (Applicant’s Representative) responded to the invitation to comment on the refusal of the nomination application.[8]
[8] CB 27-28.
On 22 September 2017, a Delegate of the Minister refused to grant the Application for the Visa on the basis that the Applicant did not meet cl 186.233 of the Migration Act (Delegate’s Decision).[9]
[9] CB 85-96.
On 11 October 2017, the Applicants applied to the Tribunal for review (Review Application).[10]
[10] CB 97-99.
On 13 October 2017, the Tribunal wrote to the Applicant’s Representative acknowledging receipt of the Review Application.[11]
[11] CB 100-103.
On 12 October 2018, the Tribunal wrote to the Applicant’s Representative, in response to an email sent on date same, confirming that the Applicant’s Review Application was still active and awaiting allocation to a Tribunal Member.[12]
[12] CB 118-121.
On 14 January 2019, the Tribunal found that it did not have jurisdiction to review the Application as the company had deregistered on 11 September 2017 (Tribunal’s Nominator Decision). As a result, the Nominator had no legal standing to act as the Applicant’s Nominator.[13]
[13] CB 127.
On 6 March 2019, the Applicant wrote to the Tribunal and attached a letter requesting for the outcome of the refusal of the nomination application.[14]
[14] CB 122-124.
On 25 March 2019, the Tribunal wrote to the Applicant’s Representative and invited the Applicants to comment on particulars of information in relation to the nomination application refusal by 8 April 2019.[15]
[15] CB 125-128.
On 7 May 2019, the Tribunal wrote to Applicant’s Representative and invited the Applicant to comment on particulars of information provided in relation to the nomination refusal by 21 May 2019.[16]
[16] CB 129-132.
On 22 May 2019, the Applicant’s Representative wrote to the Tribunal and requested an extension of time to provide a response.[17]
[17] CB 133.
On 27 May 2019, the Tribunal responded to the request and an extension was granted until 12 June 2019.[18]
[18] CB 134-137.
On 12 June 2019, the Applicant’s Representative wrote to the Tribunal with a letter in response from Mr Pham, the Director of the Nominator, now under the business name of ‘Tan Phu Kang’ attached.[19]
[19] CB 138-140.
On 1 August 2019, the Applicants were invited to attend a telephone hearing on 19 August 2019.[20]
[20] CB 141-144.
On 13 August 2019, the hearing was rescheduled by the Tribunal to take place on 20 August 2019.[21]
[21] CB 145-148.
On 19 August 2019, the Applicant’s Representative wrote to the Tribunal and attached a letter from the Nominator along with evidence of business registration and a signed response to hearing invitation.[22]
[22] CB 149-154.
On 20 August 2019, the Applicants attended the hearing with the assistance of their representative and a Punjabi interpreter. The hearing was adjourned to allow Mr Pham to provide the Tribunal with evidence of the reregistration of Sum Business Development Pty Ltd by 6 September 2019.[23]
[23] CB 155-157.
On 25 August 2019, Mr Pham advised the Tribunal that his accountant had applied to have the sponsor reregistered and that it would take ASIC 45 days to process. Mr Pham sought an extension of time from the Tribunal to allow for this procedure to be completed.[24]
[24] CB 159.
On 26 August 2019, the Applicant sought an extension of time from the Tribunal in order to provide evidence of the Nominator’s reregistration.[25]
[25] CB 158.
On 30 August 2019, the Applicant provided the Tribunal with:
(a)A letter dated 25 August 2019 seeking an extension of time to provide evidence of the business reregistration;[26]
(b)A letter dated 25 August 2019 from Mr Pham stating that his accountant had applied to ASIC and it would take at least 45 days;[27]
(c)A letter dated 22 August 2019 from ITax office Accountants and Tax Agents requesting immigration authorities allow between 40-50 days to make sure the company fulfills the reinstatement process; and[28]
(d)A Change of Contact Details form withdrawing authorisation for Mr Gupta, the Applicant’s Representative to act on the Applicant’s behalf.[29]
[26] CB 158.
[27] CB 159.
[28] CB 160.
[29] CB 161-163.
On 3 September 2019, the Tribunal refused the Applicant’s extension of time request on the basis that it had no jurisdiction in relation to the Application made by the Nominator and that further evidence of the reregistration of the Nominator would not change the outcome of the review.[30]
[30] CB 164-166.
On 25 November 2019, the Applicant was invited to comment on information that the Nominator had been deregistered on 11 September 2017 and had no legal standing to act as a Nominator by 9 December 2019.[31] No response was received.[32]
[31] CB 167-169.
[32] CB 168.
On 4 February 2020, the Applicant was invited to comment on further particulars of information provided to the Tribunal by 18 February 2020.[33]
[33] CB 170-172.
On 17 February 2020, the Applicant provided the Tribunal with submissions and sought an extension of time to allow the Nominator to be reregistered. The Applicant confirmed that:[34]
(a)The Nominator had been deregistered on 11 September 2017;
(b)Mr Pham wanted to reregister Sum Business Development Pty Ltd;
(c)The business was still running in the same place but with different staff and ABN; and
(d)It would take up to 2 or 3 months to complete the process for reregistration according to ASIC.[35]
The Applicant did not provide further evidence in respect of the reregistration of the Nominator.
[34] CB 173-175.
[35] CB 174.
On 15 April 2020, the Tribunal held that “the Tribunal does not consider it reasonable to grant an extension of time to an unfixed time” and proceeded to dismiss the Applicants’ Review Application on the ground that there was not an approved nomination and cl 186.223(2) was not satisfied.
On 16 April 2020, the Tribunal wrote to the Applicants and attached written reasons. The letter enclosed that the Tribunal affirmed the decision under review on 15 April 2020.[36]
[36] CB 176-181.
On 3 December 2020, the Nominator was reinstated.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 178 to 181 of the Court Book.
The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [1] to [5].
The Tribunal considered the requirements of cl 186.233 of the Regulations which requires that the Minister has approved the nomination for the visa application. The Tribunal noted that a Delegate for the Minister had refused the nomination on 11 August 2017, and therefore the Minister had not approved the nomination. As such, cl 186.223(3) had not been met by the Applicant.[37]
[37] CB 181.
The Tribunal noted that the dependent applicants were members of the family unit of the Applicant. As a result of the Applicant’s failure to meet cl 186.233, the dependent applicants were unable to satisfy cl 186.311(a) and as such those applications failed.[38]
[38] CB 181.
PROCEEDINGS IN THIS COURT
The Application was filed in this Court on 7 May 2020, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 12 August 2020, Orders were made before this Court for the Applicant to be appointed as litigation guardian of the third and fourth applicant. That the Applicant file: any amended application with proper particulars, any Supplementary Court Book and written submissions. That the First Respondent file and serve a copy of the Court Book on or before 23 September 2020, and written submissions at least 14 days before the hearing.
On 6 May 2025, Orders were made by Registrar Cummings of this Court for the First Respondent’s name to be amended to Minister for Immigration and Multicultural Affairs. For the Second Respondent’s name to be amended to Administrative Review Tribunal. That all extant programming orders (excluding the litigation guardian appointments) be vacated. For the First Respondent to file and serve on or before 14 May 2025: written submissions in support of the summary dismissal application and any additional evidence. For the Applicant to file and serve on or before 28 May 2025: any amended application for judicial review, written submissions and any additional evidence. That the summary dismissal application be listed for hearing on 30 May 2025.
On 30 May 2025, Orders were made by Registrar Cummings of this Court for the judgment on the Minister’s summary dismissal application be reserved. That the matter be adjourned for delivery of judgment on 4 June 2025.
On 4 June 2025, Orders were made by Registrar Cummings of this Court for the First Respondent’s name be amended to Minister for Immigration and Citizenship. That the Minister’s application for summary dismissal be dismissed. That the Applicants file and serve by no later than 2 July 2025: any amended application, written submissions and any additional evidence. For the First Respondent to file and serve by no later than 16 July 2025: written submissions and any additional evidence. That the First Respondent file and serve an affidavit of service of all relevant court documents by no later than 23 July 2025, if the Applicants continue to be self-represented.
This matter was heard on 30 July 2025 for a Final Hearing before me.
The Applicant relied upon the following documents:
(a)The Application filed 7 May 2020; and
(b)The Affidavit of the Applicant sworn and filed 7 May 2020 (Applicant’s Affidavit).
The Minister relied upon:
(a)The Response, filed 19 May 2020 and 28 March 2025
(b)Affidavit of Sarah Ainslie Thompson affirmed and filed on 29 May 2025;
(c)The Minister’s Outline of Submissions filed 16 July 2025; and
(d)List of Authorities filed 23 July 2025.
Both parties relied on the Court Book.
The Application contains the following grounds of review (Grounds of Review):
1. To Revoke and not to refuse the applicant’s Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). (Ground 1).
2. This is an application for FCC to review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 September 2017 and affirmed by AAT on 15 April 2020 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). (Ground 2).
3. Firstly, I made a valid application for the Subclass 186 ENS visas on 30 June 2017 under the Temporary Residence Transition stream, to work in the nominated position of Graphic Prepress Trades Worker. (Ground 3).
4. On 22 September 2017 the case officer refused to grant the visas and mentioned that I did not meet cl.186.223 of Schedule 2 to the Regulations. (Ground 4).
5. According to the case officer my sponsor's, Sum Business Development Pty Ltd (the nominator) nomination was refused on 11 August 2017. Consequently, the criteria for the grant of an Employer Nomination Scheme (subclass 186) were not met. (Ground 5).
6. I made a valid AA T application in October 2017, the Tribunal wrote to me on 25 March 2019 and 21May2019 inviting them to comment on or respond to the information that formed the basis of the Tribunal’s Visa Decision to refuse the nomination. (Ground 6).
7. On the 12 June 2019 I replied to the Tribunal a note from Danh Pham who claimed to be the director of Tan Khang Pty Ltd ACN 617899902. I replied that this business was registered on 10 March 2017 and runs from the same address under the same director as the previous business Sum Business Development Pty Ltd. (Ground 7).
8. On the 25 August 2019 Mr Pham my employer advised the Tribunal in writing that his accountant had applied to have the sponsor reregistered and that it would take 45 days for ASIC to process the reregistration. (Ground 8).
9. He sought an extension of time from the Tribunal so that the procedure could be completed. (Ground 9).
10. I also informed that there are no issue that I had been employed by the sponsor and was working for it when my employer Mr Pham began to reorganise his business affairs. (Ground 10).
11. My employer informed me that had applied for the reregistration and he doesn't know why it is taking so long for the reregistration. (Ground 11).
12. I had requested for an extension of time on this basis (Ground 12).
13. The Tribunal affirmed the refusal decision that the nominator had no legal standing to act as a nominator and that as a result there was no approved nomination in place for the nominated position. (Ground 13).
14. The Tribunal affirmed the refusal decision that there was no approved nomination in place I does not meet cl. 186.223 of Schedule 2 of the Regulations. (Ground 14).
15. Inspite I wrote to the Tribunal advising that the nominator "'is still ready to reregister" [sic]. My request to Tribunal for further extension to enable this process to occur was not consider under the section 359A. I need natural justice [sic]. (Ground 15).
16. The Tribunal does not consider it reasonable to grant an extension of time and made an affirmed decision noting that an extension of time is not given. (Ground 16).
17. I strongly believe that the member could have given me an extension of time. I strongly believe that the Tribunal breached the section 359A. (Ground 17).
18. Recently I spend lot of time doing research on some similar cases which are revoked at AAT. After taking into all considerations I clearly noticed there were several defects in procedural fairness that occurred with this decision and he didn't take into my consideration all the facts and evidences (Ground 18).
19. Like wise based on all these above facts, I also strongly believe that the (Tribunal) breached s 359A of the Migration Act 1958 (Cth) (the Act) in failing to put to the applicant for comment information contained in the applicant's visa. (Ground 19).
20. This information was relied on by the Tribunal as the reason, or part of the reason for affirming the decision under review and did not fall within any of the exceptions in s 359A(4) of the Act. (Ground 20).
21. As the procedure in s 359AA of the Act was not properly engaged during the application for review and layer for hearing and as 359A letter was not otherwise sent to the first applicant, a breach of s 359A of the Act has occurred, amounting to jurisdictional error. (Ground 21).
22. I am requesting the Federal Circuit Court in the interests of the administration of justice to make the order. (Ground 22).
(Words in bold added otherwise as written)
APPLICANT’S SUBMISSIONS
The Applicants did not file written submissions.
The Applicants did not seek to make any detailed oral submissions. The Applicants relied on their Grounds of Review to speak for themselves.
RESPONDENT’S SUBMISSIONS
By way of submissions filed 16 July 2025, the Minister submits that the Application should be dismissed with costs.
Grounds 1 to 14 raise factual matters. Ground 22 asks the Court to make orders. The Minister has responded to the remaining grounds, being Grounds 15 to 21, as follows:
Grounds 15 and 16 – Unreasonableness
The Applicant asserts that the Tribunal fell into error by failing to grant an extension of time on two occasions.
First extension of time request
On 20 August 2019, the Tribunal hearing was adjourned to allow Mr Pham to provide evidence of the Nominator’s reregistration by 6 September 2019. The Applicant requested an extension of time and attached correspondence from Mr Pham confirming that reregistration with ASIC would take 45 days.[39]
[39] CB 149, 160.
On 3 September 2019, the Tribunal refused the adjournment request. The Tribunal found that the consequence of deregistration meant that the Nominator ceased to have legal standing. The Tribunal noted that the relevant question was whether there was an approved nomination pursuant to s 186.233 at the relevant time.
Second extension of time request
On 15 April 2020, the Tribunal further decided that it was not reasonable to grant an extension of time “to an unfixed time” given the Applicant had not provided any further evidence to establish that the reregistration had been sought by the Nominator.[40]
[40] CB 180.
The Minister submits that no error arises in respect of either occasion and that the Tribunal’s exercise of its discretion to refuse the Applicants’ adjournment request were reasonable in the circumstances.
Grounds 15, 17, 18, 19, 20 and 21 – Breach of procedural fairness
The Minister submits that the Applicants contention that the Tribunal breached s 359A and s 359AA of the Migration Act are misconstrued.
While the Tribunal’s compliance with s 359A(1) is mandatory, the Minister notes that information does not have to be put to an applicant in accordance with the provision if the Tribunal has instead put information to an applicant in accordance with s 359AA.[41]
[41] SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [87].
Ground 19 states that the Tribunal failed to put information contained in the visa application to the Applicant for comment. The Applicant does not provide particulars as to this ground.
The Minister contends that the Tribunal discharged its obligations pursuant to s 359A of the Act by letters sent to the Applicant on: 25 March 2019, 7 May 2019, 25 November 2019 and 4 February 2020. The Minister submits that these letters provided the Applicant with clear particulars of the information that would be the reason, or part of the reason, for affirming the decision under review. The Applicant was given the prescribed period to provide information or comment on the information put to them pursuant to reg 4.17(4) of the Regulations.
The Minister submits that no breach of s 359A can be established by the Applicant.
Ground 18 – failure to consider facts and evidence
By Ground 18, the Applicant broadly asserts that the Tribunal failed to consider “all the facts and evidence” and this amounted to a denial of procedural fairness. The Applicant does not provide particulars as to this ground. The Minister notes that the dispositive issue before the Tribunal for review was whether the Applicant was subject to an approved nomination as required by cl 186.233 of the Regulations.
The Minister submits that the Tribunal correctly applied the relevant criteria to the relevant issue and that this ground does not establish any error.
Futility
The Minister submits that, in short, it would be futile to grant the relief sought by the Applicants as ‘no useful result could ensue’ if the matter were remitted to the Tribunal for reconsideration given that the Nominator has been deregistered and remains deregistered.[42] The Nominator thus does not exist as a legal person capable of bringing an application.[43]
[42] R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at [400] cited with approval in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (Re Refugee Review Tribunal) at [56].
[43] Corporations Act 2001 (Cth) s 601AD(1).
The Minister submits that if the matter were remitted to the Tribunal, the Applicant would nonetheless still not be able to meet the criteria set out in cl 186.223 of the Regulations as the Applicant is not the subject of an approved nomination.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[44]
[44] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002).
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The Court neither consider the merits of the decision nor remakes it.[45] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[46]
[45] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[46] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82] (per McHugh, Gummow and Hayne JJ).
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[47] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[48] Different kinds of error may overlap.[49] The categories are not closed.[50]
[47] Plaintiff S157/2002.
[48] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[49] Yusuf at [82].
[50] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[51] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[52] It has been described as an “undemanding” standard.[53]
[51] LPDT at [7].
[52] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[53] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Employer Nomination Scheme Visas (Subclass 186)
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
The criteria that the Applicant was required to satisfy for the grant of a Permanent Employer Sponsored (Class EN) (Subclass 186) visa are set out in cll 186.1 to 186.611 in Schedule 2 of the Regulations.
Clause 186.223 provided (at the date of the Decision):
1. The position to which the application relates is the position:
a. nominated in an application for approval that:
i. identifies the applicant in relation to the position; and
ii. is made in relation to a visa in a Temporary Residence Transition stream; and
…
c. in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
2. The Minister has approved the nomination.
3. The nomination has not subsequently been withdrawn.
3A. Either:
a. there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
b. it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
4. The position is still available to the applicant.
5. The application for the visa is made no more than 6 months after the Minister approved the nomination.
CONSIDERATION
The Applicant’s Grounds of Review are a mixture of narrative and grounds. I address the matters that constitute substantive Grounds of Review below.
Grounds 15 and 16 (Adjournment)
Ground 15 is that:
Inspite I wrote to the Tribunal advising that the nominator "'is still ready to reregister" [sic]. My request to Tribunal for further extension to enable this process to occur was not consider under the section 359A. I need natural justice [sic].
Ground 16 is that:
The Tribunal does not consider it reasonable to grant an extension of time and made an affirmed decision noting that an extension of time is not given.
The focus of the Applicant’s complaint in Grounds 15 and 16 is that the Member did not adjourn the Tribunal hearing (on 15 April 2020) to allow time for the Nominator to be reinstated. A request for an “extension” was sought on 17 February 2020 and refused at the Tribunal’s hearing on 15 April 2020.
The reasons recorded in the Tribunal’s Visa Decision to refuse the adjournment were:
13. On 17 February 2020 the primary applicant wrote to the Tribunal advising that the nominator “is still ready to reregister”. The primary applicant requested a further extension to enable this process to occur. However, no further evidence was submitted to establish that any such reregistration has occurred or been sought.
14. The Tribunal does not consider it reasonable to grant an extension of time to an unfixed time. In these circumstances the Tribunal has considered it appropriate to make a decision noting that the primary applicant has had many months in which to provide the necessary evidence as to the nominator’s status and that the reregistration would not alter the outcome as a new nomination cannot be relied upon. The nomination linked top the visa application is the relevant one.
Grounds 15 and 16 raise the question of whether the Tribunal committed a jurisdictional error by failing to exercise its power to adjourn the Application, and in particular whether its decision not to adjourn the Tribunal’s hearing was unreasonable.
Section 363(1)(b) of the Migration Act (in force at the date of the Tribunal’s Decision), for the purpose of a review, provided that the Tribunal “may… (b) adjourn the review from time to time”. This confers both a power and a discretion on the Tribunal. There is a presumption, that “a discretionary power, statutorily conferred, will be exercised reasonably”.[54]
[54] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [47] and [63].
In Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640, Wigney J summarised the principles relating to legal unreasonableness in the context of decisions made by the Tribunal to refuse adjournment applications by reference to the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 in the following terms:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or "plainly unjust": Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the "decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law": Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that "enough is enough": Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
The Tribunal is not required to indefinitely defer its decision making process.[55]
[55] Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617.
A central issue to the resolution of Grounds 15 and 16 is the effect of the Nominator’s reinstatement and s 601AH(5) of the Corporations Act 2001 (Cth) (Corporations Act).
Section 601AH(5) of the Corporations Act provides:
If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company. Any property of the company that is still vested in the Commonwealth or ASIC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim.
(emphasis added)
The Minister contends that the reinstatement “does not act retrospectively”, such that at the time the Tribunal made its decision (not to adjourn), “there was no longer a person or legal entity who had standing to continue with the application for review”.
In RFZD v Commissioner of Taxation [2023] FCA 324 at [9], the court held that a non-existent legal person, such as a deregistered company, cannot sue or be sued in its own name. However, the Court in that case did not need to consider the effect of s 601AH(5) of the Corporations Act, because no application had been made to reinstate the company (at [5]).
In Allianz Australia Insurance Ltd v Viksne [2021] NSWCA 268 (Viksne), the New South Wales Court of Appeal held that the effect of s 601AH(5) of the Corporations Act was that proceedings commenced against companies in the New South Wales Dust Diseases Tribunal at a time the companies were deregistered, were taken to have been validly commenced and pending as at the time applicant parties in the Tribunal proceedings had died. The significance of that finding was that s 12B of the Dust Diseases Tribunal Act 1989 (NSW) permitted the recovery of damages for non-economic loss by an applicant in circumstances where proceedings had been commenced and were pending at the time of the applicant’s death.
The Minister referred to White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441 at [115]; (2006) 200 FLR 125 at [115] and Morgan v McMillan Investment Holdings Pty Ltd [2024] HCA 33 at [52]; (2024) 98 ALJR 1200 at [1210], each of which highlights limits on retrospectivity, for example, in relation to the director’s appointment and vesting of property in ASIC, but do not address the particular question in the present case.
The Minister’s submissions emphasised the status of Mr Pham as director, noting that upon reinstatement he became a director again “as from the time when ASIC or the Court reinstates the Company”. Be that as it may, the Nominator’s reinstatement meant that its existence as a legal person or entity was taken to have continued as if it had not been deregistered, including at the time of the Tribunal’s Decision.
I turn then to consider the effect of reinstatement of the Nominator in the present case.
As a consequence of its reinstatement, pursuant to s 601AH(5) of the Corporations Act, the Nominator “is taken to have continued in existence as if it had not been deregistered”. Consistently with the decision in Viksne, as at both the date of reinstatement, and the earlier date of the Tribunal hearing, the Nominator was taken to have been registered.
However, establishing the legal existence of the Nominator at the date of the Tribunal hearing (on 15 April 2020) was not the only difficulty confronting the Applicants. Other difficulties included the fact of the Delegate’s Nominator Decision to refuse the nomination on 11 August 2017 (a date prior to the Nominator’s deregistration); the fact of the Tribunal’s Nominator Decision to dismiss the Nominator’s application to review the Delegate’s Nominator Decision on 14 January 2019; the fact that no application to the Federal Circuit Court (FCC) for a remedy in respect of the Tribunal’s Nominator Decision was made within 35 days as provided for in s 477(1) of the Migration Act and was more than 12 months out of time at the date of the Tribunal hearing; the fact that no application for an extension had been sought under s 477(2) of the Migration Act; and the fact that as at the date of the Tribunal hearing, the Nominator did not have a director and hence no agent who could cause it to bring or prosecute proceedings.
Possible unreasonableness in the Tribunal’s Decision may be characterised in various ways, including:
(a)First, that the Tribunal acted unreasonably in basing its decision on the arguably erroneous premise that reinstatement of the Nominator “would not alter the outcome”. (Ground A); and
(b)Second, the Tribunal acted unreasonably in failing to take into account the (deemed) fact that the Nominator was registered at the time of the hearing of the application. (Ground B).
A critical difference between these grounds is that Ground A concerns matters that were known to the Tribunal at the time of its decision, and Ground B concerns a matter that was not known by the Tribunal at the time of the hearing (namely a retrospectively deemed fact).
I turn then to Ground A. The first question is whether the Tribunal was in error when it found that “the reregistration would not alter the outcome as a new nomination cannot be relied upon. The nomination linked to the visa application is the relevant one.” The underlying assumption in that passage was that reregistration would not cure the lack of approval of the Nominator. While reregistration would not itself have cured the lack of approval of the Nominator, in theory, reregistration might have enabled the Nominator to seek an extension of time under s 477(2) of the Migration Act for a review the Tribunal’s Nominator Decision, which was a step on the path to the approval of the Nominator.
Despite the possibility of an application under s 477(2) of the Migration Act, I do not consider that the Tribunal was in error in finding that “the reregistration would not alter the outcome as a new nomination cannot be relied upon.” Each of the elements of that statement was true: first, reregistration of the Nominator did not result in the approval of the Nominator and second, as Mortimer J (as her Honour was then) held in Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267, the statutory scheme “does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.” The reasons given by the Tribunal were not required to traverse every possibility, regardless of how remote that possibility might be.
Further, I do not consider that the Tribunal’s exercise of discretion not to adjourn the Tribunal hearing to allow the Nominator to be reinstated was unreasonable in the circumstances that were then prevailing, including, that the Delegate’s Nominator Decision had been made on 11 August 2017;[56] that the Nominator was deregistered on 11 September 2017;[57] that the Tribunal’s Nominator Decision was made on 14 January 2019[58] and there was no application to review that decision which was well out of time; that the Applicant had sought an extension of time from the Tribunal in order to provide evidence of the Nominator’s reregistration on 26 August 2019 more than six months earlier.[59] While these matters were not expressly referred to in the Tribunal’s reasons in relation to adjournment, I consider that they were comprehended by the conclusion that “the registration would not alter the outcome”.[60]
[56] CB 94.
[57] CB 174.
[58] CB 127. Page 17 [Annexure B] of the Affidavit of Sarah Ainslie Thompson affirmed on 29 May 2025.
[59] CB 158.
[60] Compare Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [47].
I turn then to Ground B, namely whether “the Tribunal acted unreasonably in failing to take into account the (deemed) fact that the Nominator was registered at the time of the hearing of the Application”.
The immediate problem for the Applicants in relation to Ground B is that the test for legal unreasonableness is assessed at the time of the decision and on the basis of circumstances known to the decision maker.[61] Axiomatically, the deemed fact of registration of the Nominator was not a matter that was known to the Tribunal at the time of the hearing. Section 601AH(5) of the Corporations Act does not operate to deem the Tribunal to have had that knowledge. This is another example of the limits on retrospectivity. In these circumstances, the Tribunal was not in error in failing to take into account the deemed fact of registration of the Nominator.[62]
[61] Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [26]; DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 per Kiefel CJ, Gageler, Gordon and Steward JJ at [21].
[62] Compare Hycenko v Badge [2023] VSC 19.
Even if I am wrong in the conclusion that the question of unreasonableness is judged without reference to the deemed fact of registration, it is plain in the passage that I have set out above that the Tribunal did have regard to the possibility of the Nominator being reinstated, and the difference between that and taking into account the deemed fact of the Nominator’s registration is, to borrow a phrase, “tenuous, to the point of invisibility”.[63] Underscoring the reasonableness of the decision not to adjourn are difficulties confronting the Applicants that I have identified above (at [96]).
[63] ACN 078 272 867 Pty Limited (In liquidation) (Formerly Advance Finances Pty Limited) v Deputy Commissioner of Taxation [2011] HCA 46 at [52].
To the extent that Ground 15 refers to “natural justice”, I have addressed this question below in relation to Grounds 17, 18, 19, 20 and 21.
I am not satisfied that a jurisdictional error is made out by reference to Grounds 15 and 16.
Grounds 17, 18, 19, 20 and 21 (Procedural fairness)
Ground 17 is that:
I strongly believe that the member could have given me an extension of time. I strongly believe that the Tribunal breached the section 359A.
Ground 18 is that:
Recently I spend lot of time doing research on some similar cases which are revoked at AAT. After taking into all considerations I clearly noticed there were several defects in procedural fairness that occurred with this decision and he didn't take into my consideration all the facts and evidences
Ground 19 is that:
Like wise based on all these above facts, I also strongly believe that the (Tribunal) breached s 359A of the Migration Act 1958 (Cth) (the Act) in failing to put to the applicant for comment information contained in the applicant's visa.
Ground 20 is that:
This information was relied on by the Tribunal as the reason, or part of the reason for affirming the decision under review and did not fall within any of the exceptions in s 359A(4) of the Act.
Ground 21 is that:
As the procedure in s 359AA of the Act was not properly engaged during the application for review and layer for hearing and as 359A letter was not otherwise sent to the first applicant, a breach of s 359A of the Act has occurred, amounting to jurisdictional error.
Section 359AA of the Migration Act provides that if an applicant is appearing before the Tribunal because of an invitation under s 360, the Tribunal may orally give to the applicant clear particulars of any information that “would be the reason, or a part of the reason, for affirming the decision that is under review”.
Section 359A of the Migration Act provided, amongst other things, that the Tribunal must give clear particulars of information that “would be the reason, or a part of the reason, for affirming the decision that is under review” together with other information. The term “information” in this context “is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[64] The notification requirement in s 359A of the Migration Act is mandatory, such that a breach of the section may constitute jurisdictional error.[65]
[64] SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297 at [18].
[65] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294.
The Applicants contend that the Tribunal breached s 359A of the Migration Act by “failing to put to the applicant for comment information contained in the applicant’s visa”.
While the Applicants do not identify the “information” the subject of complaint, it is relevant to note that the Applicant’s Visa, and hence the “information” contained in it, is “information” “that the applicant gave for the purpose of the application for review”, and hence, subject to the express exception provided for in s 359A(4) of the Migration Act.
In any event, the Tribunal did comply with its obligations under s 359A of the Migration Act by sending letters to the Applicant on 25 March 2019,[66] 7 May 2019,[67] 25 November 2019[68] and 4 February 2020,[69] setting out particulars of the “information” that it considered would be the reason, or a part of the reason, including, the lack of an approved nominating employer, for affirming the decision that is under review, and seeking the Applicants’ response.
[66] CB 127-128.
[67] CB 131-132.
[68] CB 168-169.
[69] CB 171-172.
Ground 18 separately claims that the Tribunal did not “take into my consideration all the facts and evidences”, without identifying the matters that the Tribunal is alleged to have failed to consider. I am not satisfied that the Tribunal failed to consider all relevant matters in making its decision. Having concluded that cl 186.223(2) of Schedule 2 of the Regulations was not satisfied, the Tribunal was bound to affirm the decision under review in accordance with the decision in Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267. No other matters were relevant to the “decision that is under review”.
I am not satisfied that jurisdictional error is made out by reference to Grounds 17 to 21.
Futility
The Court may refuse relief if, irrespective of the individual merits, the decision-maker was bound by the governing statute to refuse the application.[70]
[70] Re Refugee Review Tribunal per Gaudron and Gummow JJ (at [58]).
In Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267, Mortimer J[71] considered a contention that an appeal from a decision dismissing an application for judicial review of a decision not to grant a Subclass 187 Visa was futile, because the employer’s nomination had been refused by the Minister.
[71] As her Honour was then, and with whom Jago and Bromberg JJ, agreed.
While it was unnecessary for her to decide, Mortimer J concluded that even if error had been established, remitting the matter back to the Tribunal would have been futile:
82. …The contention pressed was that, on any remitter to the Tribunal, Harrico could submit another nomination in respect of the same position and in respect of the appellant while the matter remained before the Tribunal. I do not accept that submission. The refusal of Harrico’s nomination by the Minister, and the absence of any merits review decision overturning it, is fatal to the appellant’s current RN visa application.
…
88. …In my opinion the criterion [in cl 187.233(i)] imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
89. The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
90. The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
Where jurisdictional error is established, considerable caution must be exercised before refusing relief on the basis of futility.
In Leev Minister for Immigration and Citizenship [2007] FCAFC 62 (Lee), Besanko J stated at [53]:
… The Court cannot be certain that a rehearing will be futile because (and I understand the first respondent to concede this) nomination by an approved standard business sponsor is a requirement to be satisfied at the date of decision and it is a possibility that this criterion will be met on a rehearing of the appellants’ application for review. It may well be that it will not be met but, in my opinion, unless it is clear that it will not be met, relief should not be refused on the ground of futility. In other words, I do not think that relief should be refused unless it is clear that a rehearing will be futile and I do not think that it is in this case.
As was the case in Singh, having determined that there was no jurisdictional error, it is unnecessary for me to determine the question of futility. Nevertheless, for the reasons set out below, had I found jurisdictional error, I would have refused relief on the ground of futility.
The Minister contends that if the Court were to quash the Tribunal’s Visa Decision and remit the matter back to the Tribunal, the Tribunal would be bound to affirm the decision a second time on the basis that cl 186.223(2) of Schedule 2 of the Regulations would not be satisfied, and further, could not be satisfied, because the Nominator is deregistered. The Minister would contend that the following passage from Singh is apposite: “The refusal of Harrico’s nomination by the Minister, and the absence of any merits review decision overturning it, is fatal to the appellant’s current RN visa application.”
Against this, it may be contended that if the matter were remitted to the Tribunal, the following steps could be taken to satisfy cl 186.223(2): first, an application could be made for the reinstatement of the Nominator; second, upon reinstatement, the Nominator could apply to extend the time for review of the Tribunal’s Nominator Decision pursuant to s 477(2) of the Migration Act; third, upon the grant of an extension under s 477(2), the Nominator could seek the review of the Tribunal’s Nominator Decision in the FCC; fourth, upon the successful review of the Tribunal’s Nominator Decision and remittal of the matter to the Tribunal, the Nominator could seek the review of the Delegate’s Nominator Decision by the Tribunal; fifth, upon the successful review of the Delegate’s Nominator Decision by the Tribunal, the Nominator’s Nomination Application could have been approved and the Applicant could prosecute her application to review the Tribunal’s Decision (because she would then be able to satisfy cl 186.233(2)) of Schedule 2 of the Regulations).
I return to the question of whether a rehearing of the Tribunal’s Review Application would be futile. In the present case, the potential for the Applicant to satisfy cl 186.233(2) is, in my opinion, so remote and unlikely as to be fanciful. I draw that conclusion despite the theoretical pathway outlined above, and noting the prohibition on the Court conducting merits review. To single out one problem, the Nominator in seeking an extension of time to review the Tribunal’s Nominator Decision would need an extension for a period of around 6 ½ years in circumstances where the Nominator is presently deregistered, a possibility that is itself fanciful having regard to the principles that apply to an extension under s 477(2) of the Migration Act applied in a context of a 35 day statutory period.[72] In all of the circumstances, I consider that “it is clear” (to use the words of Besanko J in Lee) that a rehearing of the Tribunal’s Visa Application would be futile.
[72] See Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579.
In the premises, had I found error on one of the grounds set out in the Applicants’ Application, I would have refused relief in my exercise of discretion because of futility.
CONCLUSION
As the Applicants have not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[73] the Application for judicial review must be dismissed.
[73] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [113].
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $8,371.31 being the scale amount.[74] I am satisfied that costs ought to follow the event,[75] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[76]
[74] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.
[75] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[76] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
Because the third and fourth applicant are the subject of a litigation guardian order in favour of the Applicant, it is appropriate that my costs order be limited to the first and second applicants.[77]
[77] Plaintiff B9/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCAFC 27 at [10].
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 6 August 2025
SCHEDULE OF PARTIES
MLG 1487 of 2020 Applicants
Fourth Applicant:
DEVANSH KAINTH
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