Lingaiah v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1175
•25 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lingaiah v Minister for Immigration and Citizenship [2025] FedCFamC2G 1175
File number(s): MLG 666 of 2021 Judgment of: JUDGE JOHNS Date of judgment: 25 July 2025 Catchwords: MIGRATION – application for judicial review – regional employer nomination (subclass 187) visa – refusal due to no approved nomination – application for review of registrar’s summary dismissal – extension of time –inadequate explanation for delay – no reasonably arguable error – futility of remittal – application dismissed Legislation: Migration Act 1958 (Cth), s 359A, s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.13(a), r 21.02, r 21.04
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 256(1).
Migration Regulations 1994 (Cth), cl.187.233 of Sch 2.
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]
Bechara v Bates [2021] FCFAFC 34; (2021) 286 FCR 166 at [1]-[7]
BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [12], [18]
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 23 July 2025 Place: Melbourne – Video, Microsoft Teams Applicant: Appeared on their own behalf Solicitor for the First Respondent: Rogan O’Shannessy, solicitor Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 666 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SRIKANTH SIDDUNUR LINGAIAH
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINSTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
25 JULY 2025
THE COURT ORDERS THAT:
1.The application for an extension of time to file an application for review of a registrar’s decision is dismissed.
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 JOHNS
INTRODUCTION
On 12 July 2025, the Applicant lodged late, pursuant to r 21.02 of the Federal Circuit and Family Court of Australia (Div 2) (General Federal Law) Rules 2021 (Cth) (Rules), an application for review (Review Application) of a decision of a Registrar of this Court dated 16 June 2025 (Registrar’s Decision).
The Registrar’s Decision dismissed the Applicant’s application for judicial review of a decision of the Administrative Review Tribunal (Tribunal), pursuant to r 13.13(a) of the Rules.
The Tribunal’s decision affirmed a decision of a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (as the Minister was then called) (Delegate) made on 16 March 2021, to refuse the Applicant a Regional Employer Nomination (Permanent) Subclass 187 Visa.
Pursuant to rule 21.04 of the Rules, this review is a hearing de novo.[1] That is to say, this decision is not concerned with correcting any error on behalf of the Registrar but is “a fresh hearing which may result in a different order having the effect of undoing or revoking the decision of the registrar.”[2]
[1] see also Bechara v Bates [2021] FCFAFC 34; (2021) 286 FCR 166 at [1]-[7]
[2] BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307, [11].
However, the Court must first determine whether to grant the Applicant an extension of time to file the Review Application. That is because the Review Application was filed 19 days late.
For the reasons that follow, no extension of time is granted. Consequently, there is no application before the Court to review the Registrar’s Decision (with the further consequence that the Registrar’s Decision to dismiss the Applicant’s application for judicial review of a decision of the Tribunal, pursuant to r 13.13(a) of the Rules stands and is unaffected).
FACTUAL BACKGROUND
On 21 November 2017, the Applicant, a citizen of India, applied for a Regional Employer Nomination (Class RN) (Subclass 187) visa (Subclass 187 Visa).[3] The Applicant’s application included his partner and child as dependent applicants.[4]
[3] Court Book (CB) 1-23.
[4] CB 3,5.
The Applicants were assisted by a migration agent “Success Overseas Education and Consulting”.[5]
[5] CB 1.
The relevant nominating employer was “Chillimania Pty Ltd” (Nominator), the nominated occupation was a position of retail manager.[6]
[6] CB 14, 18.
The Nominator was trading as “East End Caltex”[7] and a Regional Sponsored Migration Scheme (RSMS) Visa sponsorship document (nominator document) was prepared for the position of retail manager in relation to the Applicant.[8] The nominator document included various information supporting the nomination, including the employment contract, job description, financials of the nominator, course certificates and personal identifiers.
[7] CB 30.
[8] CB 30-80.
On 10 June 2019, the Delegate wrote to the Applicant inviting him to comment on information that the Nominator’s nomination had been refused.[9] The Applicant did not respond.[10]
[9] CB 85-88.
[10] CB 97.
On 18 July 2019, the Delegate refused to grant the Applicant the visa. The Delegate found that the Applicant was not the subject of an approved nomination, and therefore he did not meet cl 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[11] That section provides (emphasis added):
[11] CB 90-101.
187.233
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of:
(i) sub paragraph 5.19(41(h)(ii): or
(ii) sub regulation 5.19(4) as in force before 1 July 2012; and
(b) in relation to which the declaration mentioned in paragraph 1114CQ)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who was the nominator in the application for approval.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) 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.
(5) The position is still available to the applicant.
(6) The application for the visa is made no more than 6 months after the Minister approved the nomination
On 6 August 2019, the Applicants applied to the Tribunal for review.[12]
[12] CB 102-104.
On 8 August 2019, the Tribunal acknowledged the application and provided general information about the review.[13]
[13] CB 122-132.
On 12 February 2021, the Tribunal invited the Applicants to appear before it on 9 March 2021 by telephone.[14] The Applicants responded to the hearing invitation indicating that the primary Applicant and the representative will be in attendance.[15]
[14] CB 133-137.
[15] CB 153-156.
On 18 February 2021, the Tribunal issued an invitation pursuant to s 359A of the Migration Act 1958 (Cth) (Act) to comment on adverse information by 4 March 2021. The adverse information was that:
(a)the nomination made by the Nominator in respect of the Applicant was refused by the Delegate,
(b)the Sponsor applied for review of that decision,
(c)the information before the Tribunal indicated the Nominator had been deregistered by ASIC on 4 April 2020, and
(d)on 30 October 2020 the Tribunal determined that it did not have jurisdiction.
The Applicant was informed that this may result in the Tribunal affirming the refusal of the Visa Application (s 359A Letter).[16]
[16] CB 150-152.
On 5 March 2021, the Applicants’ representative responded to the s 359A letter in the following terms,
“My client Siddunur accepts that the business sponsored business had been deregistered and it’s not trading accordingly, there is no nomination by the company in relation to him and the decision will be taken by the Tribunal accordingly.”[17]
[17] CB 157.
On 9 March 2021, the primary Applicant attended the scheduled hearing.[18]
[18] CB 164-166.
On 16 March 2021, the Tribunal affirmed the Delegate’s decision, finding that the visa application could not succeed without an approved nomination and that the Applicant did not satisfy the criteria for granting a Subclass 187 Visa.[19] Given, the primary Applicant’s visa was refused, the Applicant’s wife and child’s visa applications (which were dependent on the primary Applicant’s visa) were also refused.[20]
[19] CB 174-179.
[20] CB 178.
The above factual background was confirmed with the Applicant when he appeared in Court on 23 July 2025. That is to say, the Applicant confirmed that, at the time the Delegate made its decision (in July 2019) he was not the subject of an approved nomination. The Court notes that this fatal fact cannot be remedied.
PROCEEDINGS IN THIS COURT
Judicial review application
On 8 April 2021, the Applicant filed an application (Originating Application) with this Court under s 476 of the Act, seeking judicial review of the Tribunal’s decision. The Applicant seeks Orders that the Tribunal’s decision be quashed, the matter be remitted back to the Tribunal for reconsideration according to law, and an injunction restraining the Respondent from acting on an invalid decision.
The grounds from the Applicant’s Originating Application (Substantive Grounds of Review) are as follows (reproduced without alteration):
1. That the Tribunal made jurisdictional error as it misinterpreted Singh v MIBP [2017] FCAFC.
Particulars
a. The Tribunal erred in not considering the situation of the closure of business lead me to this position where there is RCB approval and good chance of Nomination and Visa application approval
b. The Tribunal erred and not applying clause subsection 362B(1D) or any other matter when clearly the applicant’s circumstances and fact demands that the said clause be invoked in his favour
2. The Tribunal erred in interpreting cl.187.233 to consider that the delegate was imparting its own observation and knowledge without any basis in law and fact.
Particulars
3. The Tribunal at page 2 (number 8) stated the Full Federal Court of Australia in Singh V MIBP [2017] FCAFC 105 on 14 July 2017 which doesn’t apply in my situation as I am arguing the case based on the Immigration System lead me to this situation and I am not asking to take in to consideration of any new nomination approval from another employer.
4. The Tribunal failed to consider applying the case of BJU17 v Minister for Immigration and Border Protection [2021] FCA 111
5. Le v Minister for Immigration and Border Protection [2019] FCA 427 The Tribunal must have considered my case and referred to the Minister for his intervention given my situation which is not in my control and was purely because of the Immigration system which lead me to this situation.
On 7 May 2021, the First Respondent (Minister) filed a response which sought, that the matter listed for a show cause hearing, pursuant to the then Federal Circuit Court rules.
On 13 August 2021, a bundle of documents (Court Book) was filed by the Minister.
On 9 May 2025, the Minister filed an amended response which sought that the application be dismissed, pursuant to r 13.13 of the Rules.
Summary dismissal hearing
On 9 May 2025, a Registrar of this Court issued an order programming the matter for a hearing, to determine the Minister’s summary dismissal application. The order directed:
(a)the Minister to file any submissions and evidence in support of the application by 23 May 2025, and
(b)the Applicant to file any submissions, amended application and evidence in response by 6 June 2025.
On 23 May 2025, the Minister filed its submissions in compliance with the registrar’s orders.
On 23 May 2025, the Minister filed an Affidavit, deposed by Emma Louise Hubball of Mills Oakley, which included an ASIC Company Summary extract of the Nominator, indicating the Nominator was deregistered on 4 April 2020.
The Applicant did not, prior to the summary dismissal hearing, file or serve written submissions or evidence to support the grounds for review. On 23 July 2025 the Court confirmed with the Applicant that he had not filed any additional materials. The Court is satisfied the Applicant had every opportunity to do so.
On 16 June 2025, the summary dismissal hearing took place, and the Registrar decided ex tempore to summarily dismiss the Applicant’s judicial review application pursuant to r 13.13(a) (Registrar Decision) because the Registrar was satisfied the Applicant’s grounds for judicial review did not have a reasonable prospect of success.
Filing of review application
On 12 July 2025, the Applicant lodged the Review Application (19 days outside of the time prescribed by the Court to seek such a review). The orders sought by the Applicant in the Review Application were (reproduced without alteration):
1.That pending the hearing the Respondents be restrained from acting on the decision of the JUDICIAL Registrar Lindsay, Federal Circuit and Family Court of Australia dated 16 June 2025 in a manner prejudice to the appellant's rights for saying "the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim".
2.Request for review the summarily dismissal of my application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
3.An order that the decision of the JUDICIAL Registrar Lindsay, Federal Circuit Court dated 16 June 2025 be set aside.
4.An order directing the Administrative Appeals Tribunal to hear the review again according to law.
5.That the decision of the Administrative Appeals Tribunal dated 06/08/2019, is invalid unlawful and void and of no force and effect.
6.A writ of mandamus directed to the tribunal or Minister, requiring them to determine the appellant's application according to law
7.An injunction restraining the Respondents his servants and agents from acting on an invalid decision
8.The application should be granted. The tribunal decision or Minister should be quashed and remitted back to be redetermined by a differently constituted tribunal.
9.Such further order as the Court deemed fit and proper.
The matter was allocated to this Court as presently constituted on 21 July 2025. On 21 July 2025 the matter was listed for hearing on 23 July 2025 to determine the Review Application.
On 21 July 2025, this Court informed the parties that the Review Application was made 19 days outside of the time prescribed by the Rules to seek such a review. The parties were advised to file written submissions addressing the Court on the factors relevant in the exercise of the Court’s discretion to extend the time for filing of the Review Application by 22 July 2025.
The Applicant did avail himself of the opportunity to file any further written submissions. On 23 July 2025 the Court confirmed with the Applicant that he had not filed any written submissions. On 22 July 2025, the Minister filed written submission addressing the Review Application.
Hearing of the Review Application
On 23 July 2025, the Review Application was heard by this Court on video – Microsoft Teams. The:
(a)Applicant appeared on his own behalf,
(b)Minister was represented by Rogan O’Shannessy, solicitor at Mills Oakley.
At the commencement of the hearing, the Court as presently constituted explained to the Applicant that the Court cannot set aside the decision of the Tribunal unless there is a jurisdictional error in the decision. The main categories of jurisdictional error were explained.
It was further explained to the Applicant that before the Court could consider the issue of jurisdictional error, it was necessary to determine whether to grant the Applicant an extension of time to file the Review Application.
On 12 July 2025 the Applicant had also filed an Affidavit deposed by him on that day. The Affidavit set out the chronology of events, the background to the Applicant’s case, and what were described as “the grounds of my appeal” as follows,
a.As the Appellant, I request for application review against the orders of 1 and 2 of the Judicial Registrar Lindsay, Federal Circuit and Family Court of Australia given on 16 June 2025 at Melbourne.
b.The Federal Circuit and Family Court erred in dismissing the review and not according to substantial justice to the applicant "without considering all facts, my exceptional circumstance, information and disregarding the evidence it had on file and "the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim". The judicial review application be summarily dismissed on the basis that the application has no reasonable prospects of success pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
c.The Federal Circuit and Family Court erred in dismissing the appellants without considering the circumstances of the application in entirety by not assessing the review grounds submitted in regard to exceptional reasons and circumstances of visa application.
d.The delegate of the minister and AAT member didn't consider my situation and exceptional circumstances which are beyond my control & valid reasons, did not provide remedy, protection for a victim under natural justice and rather referering my case to Minister intervention. delegate of the minister and AAT member refused my visa application since I don't have valid nomination approval since company I my nominator/ my employer has closed his company due to exceptional circumstances like Covid 19 global pandemic in April 2021.
e.My employer and the nominator - Chillimania Pty Ltd., a company which is active from 8 July 2011 in Australia, with main business location: Vic 3205.
f.The appellants' application clearly raises an arguable case under natural justice and procedural fairness and treatment under Australian Act, laws and regulations.
g.The honourable tribunal member erred in failing to consider that the delegate of the department was imparting its own observation, knowledge of its rules without considering natural justice to me, with background circumstance and facts of the case.
h.The Tribunal exercised its decision-making power unreasonably, unconscionably, rules of natural justice were breached - saying that there is no there is jurisdictional error on the part of the Tribunal, and none is apparent.
i.The making of the decision was an improper exercise of power, including because the decision maker and Judicial Registrar on judicial review of application was summarily dismissed on 16 June 2025, on the basis that the application has no reasonable prospects of success pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), took only one condition or consideration of into account "applicant does not meet the requirements of clause 187.233.
j.There was a failure to observe procedures required by law
k.There was an absence of jurisdiction, because the decision maker did not have jurisdiction to make the decision the decision involved an error of law.
l.Significant Merits in the Substantive Matter: The substantive matter or the main application has significant merits, which justify the court consider my matter.
m.Financial distress: I came to Australia as a international student to study in Australia in 2015. Currently I am financially distressed could not afford a law firm to represent me in the court of law which made me disadvantaged victim to submit good judicial review application on my own.
n.That the Tribunal made jurisdictional error as it failed to consider s.362C(5). The Tribunal erred in not considering s368A1(a)(b), breach of the rules of natural justice and a failure to afford procedural fairness. There is breach of the rules of natural justice. under the Judicial Review Act (s 20(2)(a), 21(2)(a)) requires decision makers to follow the rules of natural justice when making a decision to which the Acts apply. The common law continues to define whether natural justice applies and what it requires in the circumstances of a case.
o.Under common law. people who are affected by the decisions of the delegates of any government department follow the natural justice. The Rules of the natural justice apply to me. Where an Act or Regulation gives a decision maker the right to destroy or prejudice a person's rights or interests, the rules of natural justice will regulate the exercise of the power, unless the enactment excludes the rules of natural justice. Whenever an administrative decision is made under an enactment that affects the rights, interests or legitimate expectations of an individual, the decision maker is bound to observe the rules of natural justice, unless there is a contrary legislative intent, if so refer that case/victim to minister for intervention.
p.Under the Judicial Review Act, rules of natural justice apply to decisions made in the exercise of public power, including by government departments, administrative tribunals, parole boards and where non-judicial bodies exercise membership or disciplinary proceedings under an enactment (e.g. licensing and membership of sporting bodies). As Natural justice is not a set of rules. but constitutes a range of principles that requires a decision maker to afford a person affected by the administrative decision procedural fairness. This includes the rights to a fair hearing and that the decision is made by impartial decision makers. Failure to take relevant considerations into account. The decision maker improperly exercise power (ss 20(2)(e), 21(2)(e) Judicial Review Act) by failing to take a relevant consideration into account in the exercise of a power (s 23(b) Judicial Review Act). The court failure to observe the obligation in s 58(1)(b) of the Human Rights Act, which requires decision makers not to fail to give proper consideration to a relevant human right in making a decision, may give rise to this ground of appeal for judicial review. In absence of jurisdiction, there exists ground under the Judicial Review Act (ss 20(2)(c), 21(2)(c)) where a decision maker has made a decision that they have no power to make, or where a decision has been improperly delegated to someone other than the person upon whom the power was conferred in a statute.
q.The Tribunal could have remitted the matter to the Department with a recommendation to refer to the Minister.
r.The applicant's exceptional contributions and hardships merit discretionary relief, supported by human rights principles (ICCPR).
s.My grounds clearly outline jurisdictional errors (failure to consider relevant matters, legal misinterpretation, procedural unfairness), align with applicable statutory and common law frameworks.
Before the Court on 23 July 2025, it was explained to the Applicant that the Review Hearing was not an appeal from the Registrar’s Decision. The Applicant was asked if he wanted “the grounds of my appeal” in so far as they related to the Tribunal, to be treated as grounds of review. The Applicant said “yes”. The Minister’s representative correctly observed that amended grounds of review could only be considered if the Applicant was granted an extension of time to file the Review Application. The Minister had no objection to the Court treating “the grounds of my appeal” as “Foreshadowed Amended Grounds of Review”. Having regard to the fact that the Applicant was not represented, and in order to give him the fairest opportunity to advance his case, the Court as presently constituted decided to proceed on that basis.
Noting that the Applicant was unrepresented, the Court gave the Applicant an opportunity to elaborate on his Substantive Grounds of Review and the Foreshadowed Amended Grounds of Review and to outline any other concerns he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]. However, the Applicant admitted that he had not drafted either the Substantive Grounds of Review nor the Foreshadowed Amended Grounds of Review and he was unable to elaborate on them. He was content to rely upon the Substantive Grounds of Review and the Foreshadowed Amended Grounds of Review as drafted.
The Minister relied upon the written submissions filed in the matter on 15 July 2025, the submissions filed on 3 June 2025, when addressing the merits of the Review Application, and the submissions filed on 23 July 2025 in relation to the extension of time application. The Court incorporates (without repetition) the relevant paragraphs from the Minister’s submissions.
RELEVANT RULES AND PRINCIPLES
s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) permits a party to a proceeding in which a Delegate has exercised any of the powers of the Court to apply to the Court for review of that exercise of power. Such an application must be made within the time prescribed by the Rules or within any further time allowed in accordance with the Rules.
Rule 21.02 of the Rules states:
21.02 Time for application for review
(1) For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2) The time prescribed by subrule (1) may be extended in a proceeding:
(a)by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b) with the consent of the parties to the proceeding.
The Registrar dismissed the Applicant’s Reinstatement Application on 16 June 2025. Pursuant to r 21.02 of the Rules, the Applicants had until 23 June 2025 to lodge their Review Application. As they did not do so until 12 July 2025, the Applicants are 19 days out of time.
Rule 21.02(2)(b) allows the Court to extend the time prescribed with the consent of the parties to the proceeding. The Minister did not consent.
It remains to be seen whether the Court will extend the time prescribed on any terms the Court thinks fit.
The broad discretion to extend time in r 21.02(2) of the Rules should be exercised in the context of the well-established factors guiding decisions whether to extend time in cases such as Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [12]. These factors are:
(a)the extent of the delay,
(b)the explanation for the delay,
(c)prejudice to the respondent due to the delay, and
(d)the merits of the proposed application.
When determining if a proposed application has “merit” or an “arguable prospect of success”, the Court will do so at a “reasonably impressionistic level”.[21] Importantly, an Applicant need therefore only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted.[22]
[21] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392.
[22] MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
The discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu’uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):
For example, if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion.
CONSIDERATION
At the hearing, the Applicant was invited to address each of the factors relevant to granting an extension of time for the Review Application.
Extent of the delay
Before the Court, the Applicant accepted that the delay in lodging the Review Application was 19 days.
The delay is moderate. However, the efficient administration of justice necessitates the observance of time limits. For this reason, this factor weighs against granting the Applicant an extension of time.
Explanation for delay
In the Application for review, the Applicant provided the following “grounds to seek leave to make an amended application out of time”,
a.Ignorance of the Legal Right or Requirement: I did not know, and could not have reasonably known, of the requirement to lodge the application within the specified time.
b.Mistake: A genuine mistake was made regarding the submission of relevant legal arguments submitting, deadline, procedure, and once the mistake in submission was realized, I acted swiftly to remedy it.
c.Significant Merits in the Substantive Matter: The substantive matter or the main application has significant merits, which justify the court considering the matter despite the delay.
d.Incapacity: I was depressed which prevented me from filing the application on time.
At the hearing, the Applicant sought to justify his late filing on the basis that he was not aware of the 7-day timeframe within which to seek a review. The Applicant explained to the Court that his previous migration agent incorrectly informed him he had 21 days to review the Registrar’s decision, and during this time the Applicant tried to obtain legal representation.
The Court notes that the Court’s email of 16 June 2025 did not explicitly mention that the Applicant had only seven days to seek review of the Registrar’s decision. Although ignorance of the law is not a reasonable excuse, this omission may have contributed to the Applicant’s confusion. That omission may merit attention by those responsible for court practice rules to ensure unrepresented litigants receive clear guidance about applicable deadlines.
The Court acknowledges that the Applicant is unrepresented. However, the Applicant’s explanation remains unsatisfactory. The onus remained on the Applicant, given his desire to engage with the judicial review process, to ensure that he filed her application within the set timeframe. If he was unsure about the process, he could have sought professional advice. However, the Applicant made no inquiries with the Court or, it would appear, any legal service to confirm the applicable time limits or to obtain competent legal advice.
To the extent that the Applicant sort to explain the delay by reason of him being depressed. There is no medical evidence before the Court that establishes the illness or that it had affect on the ability of the Applicant to file the Review Application within time.
This factor weighs against granting the Applicant an extension of time.
Prejudice
The Minister accepted that there is no substantial prejudice that could not be remedied by a costs order. However, the absence of prejudice is not, by itself, a sufficient reason to grant the Applicant an extension of time.
This factor is a neutral consideration in deciding whether to grant the Applicant an extension of time.
Merits
The final and most significant factor in determining whether to grant the Applicant an extension of time to file the Review Application is the merits of the review itself.
The Court notes that before the Tribunal in March 2021 the Applicant conceded that “that the business sponsored business had been deregistered and it’s not trading accordingly, there is no nomination by the company in relation to him.” That situation had not changed by the time the matter came before the Court on 23 July 2025. The Court as presently constituted confirmed with the Applicant that, at the time the Delegate made their decision (18 July 2019) and the on the date the Tribunal made its decision (16 March 2021) he was not the subject of an approved nomination. The Applicant confirmed the same.
However, the Applicant explained he had a Regional Certifying Body (RCB) approval and a good chance of nomination, because he lives in a regional area (Swan Hill) where there are lots of jobs available. These factors post-date the Tribunal decision and invite the Court to engage in impermissible merits review.
Having conceded that he was not subject to an approved nomination when the Delegate made their decision on 18 July 2019 and when the Tribunal made their decision on 16 March 2021, the Court as presently constituted asked the Applicant how the Tribunal made a serious legal error. The Applicant said he “had no idea” how the Tribunal made an error, as it was a “long time ago” and the application was made “through his agent”.
The Court then went on to explain that even if there was a jurisdictional error made by the Tribunal, that remittal would be futile given the Applicant never held an approved nomination. The Applicant confirmed that he understood this and the consequences that follow from not having an approved nomination.
After the Court took the Applicant to ground one, the Applicant was unable to explain any of the other grounds. Having considered each of the Substantive Grounds of Review and the Foreshadowed Amended Grounds of Review, even on an impressionistic level, none of them (individually or cumulatively) disclose jurisdictional error. The grounds either misinterpret the cases referred, invoke incorrect sections of the Act or Regulations, misconceives the role of the Tribunal and or invite the Court to engage in impermissible merits review. None of the grounds can succeed.
At the hearing, the Applicant was given a final opportunity to say something about the error it is said the Tribunal engaged in. The Applicant requested more time (“a few months”) to obtain legal representation, to put a better case forward as he struggled to “express himself”. This request was not granted, the Applicant had ample time to obtain legal representation noting that he filed the Originating Application in April 2021. Further, and more importantly, no matter how persuasive the legal representation nothing will change the fact that:
(a)the Applicant was not the subject of an approved nomination, and consequently,
(b)even if there was error in the Tribunal’s decision it would be futile to remit the matter to the Tribunal.
CONSIDERATION
Mindful of the Court’s obligations towards unrepresented litigants as outlined in MZAIB at [59]-[77], [100] and [112]-[113], the Court has scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error. The Court has also read the Applicant’s grounds as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal’s part. Nevertheless, the Court is of the view that error has not been disclosed on the Tribunal’s part, and the Court is not persuaded that a reasonably arguable case of jurisdictional error arises out of the substantive application. In any case the issue of futility renders the grounds for judicial review otiose.
The matter can be simply disposed of on that basis because, even if the Applicant were to establish an error on behalf of the Tribunal, it would be futile to remit the matter to the Tribunal. The result would have to be the same. This is because at the relevant time the Applicant did not have an approved nominator and nothing can cure that. The refusal of the nomination was fatal to the Applicant’s application for a visa. The Delegate made the only decision they could in the face of that evidence, and it resulted in the Tribunal having no jurisdiction to deal with the matter. The decision of the Delegate had to be affirmed by the Tribunal. The proposed sponsor was deregistered on 4 April 2020 and remains so. Consequently, the Court would, in the exercise of its discretion, be obliged to refuse relief to the Applicant.[23] Because the grounds of review have no merit as a result of the futility issue, an extension of time should not be granted for the lodgement of the application for review of the Registrar’s Decision.
[23] SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297; [2007] HCA 26.
DISPOSITION
Taking into account all of the considerations above, particularly the absence of a satisfactory explanation for the delay in filing the Review Application, and the lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, and the futility of remitting the matter to the Tribunal, the Court is not satisfied that it is in the interests of the administration of justice that time be extended in this matter.
Accordingly, the application for an extension of time is dismissed. The Court will now hear the parties on costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 25 July 2025
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