Panjwani v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 791
•28 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Panjwani v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 791
File number(s): MLG 1401 of 2023 Judgment of: JUDGE MANSINI Date of judgment: 28 May 2025 Catchwords: MIGRATION – regional employer nomination visa –application for review of a summary dismissal decision made by a Registrar – where applicant did not have an approved nomination or indeed a sponsor at the relevant times – application can not succeed and is dismissed with costs. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s.143
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r.13.13
Migration Regulations 1994 (Cth) cl.187.233 of Schedule 2
Cases cited: AFG20 v Minister for Immigration & Anor [2020] FCCA 1361
AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 21 May 2025 Place: Melbourne The Applicant: Appearing in person Solicitor for the First Respondent: Mills Oakley Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1401 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP KUMAR PANJWANI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
28 MAY 2025
THE COURT ORDERS THAT:
1.The application for review of the Registrar’s decision filed 2 April 2025 is dismissed.
2.The Registrar’s orders made on 18 March 2025 be confirmed.
3.In addition to order 2 of the Registrar’s orders made on 18 March 2025, the Applicant pay the First Respondent’s costs fixed in the sum of $1,710.
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 Mansini
IN SUMMARY
These proceedings relate to an application for judicial review of a tribunal decision to affirm a decision to refuse a regional employer nomination visa.
That application was summarily dismissed by a registrar of the Court by reason of a lack of reasonable prospects of success.
The Applicant now seeks review of the Registrar’s decision and a reduction of costs ordered by the Registrar and as sought in this review application.
These reasons explain why the application must be dismissed and the costs ordered.
CONTEXT
The Applicant is a citizen of Pakistan.
On 11 December 2017, the Applicant applied for a Regional Employer Nomination (Permanent) (Class RN) (subclass 187) visa (the employer nomination visa). The Applicant nominated the position of retail manager and named a migration agent as authorised recipient. It is uncontroversial that the Applicant was both nominee and nominator, where the nominator was a business entity “SP FRIENDS PTY LTD As Trustee for SSS FAMILY TRUST” of which the Applicant was sole owner and sole member of the family trust who had decided to appoint himself as retail manager.
On 24 June 2019, the Applicant was notified that the nomination submitted to the Department by SP FRIENDS PTY LTD As Trustee for SSS FAMILY TRUST listing the Applicant as nominee had been refused and that this meant his visa application could not be approved (the nomination refusal decision). The Applicant was invited to withdraw his application and otherwise invited to comment in writing within 28 days.
On 19 July 2019, the Applicant’s representative responded to the refusal notice as follows:
Our client will be reviewing the decision with the Tribunal. Please send us a refusal notice as soon as you can.
If you have any queries or concerns, please do not hesitate to contact me.
On 27 July 2019, the delegate refused to grant the Applicant the employer nomination visa by reason that the Applicant did not satisfy the requirements of cl.187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (the visa refusal decision).
Applications for review of the delegate’s decisions were subsequently lodged with the Administrative Appeals Tribunal (as it then was) (Tribunal).
In or around May 2020, the Applicant’s business and nominator for his employer nomination visa closed and ceased operations.
On 15 June 2023, the Applicant and his representative attended a hearing before the Tribunal at which the applications for review were heard together. The Applicant was assisted by a representative on that occasion.
On 7 July 2023, the Tribunal decided to affirm the visa refusal decision and provided written reasons for their decision (Tribunal’s decision). In summary, the Tribunal concluded that the Applicant was not subject of an approved nomination and did not meet cl.187.233 and this was the basis for affirming the delegate’s visa refusal decision.
On 4 August 2023, the Applicant filed an application for judicial review of the Tribunal’s decision. By that application, there are 2 unparticularised grounds of jurisdictional error expressed as follows:
1.The Second Respondent made an error of law when affirming the decision under review for the refusal of the Subclass 187 nomination under the Direct Entry Stream.
2.The Second Respondent failed to provide procedural fairness and the decision was unreasonable.
On 12 October 2023, the First Respondent filed a response to the Applicant’s originating application and sought that the judicial review application be summarily dismissed pursuant to r.13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) and/or s.143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) including because the grounds pleaded could not succeed absent any particulars to make them meaningful and a failure to establish any jurisdictional error in the Tribunal’s decision. The First Respondent subsequently filed submissions dated 28 February 2025.
On 28 February 2025, a solicitor acting on behalf of the First Respondent filed an affidavit which deposed that the nominator had not commenced proceedings in relation to the nomination refusal decision.
On 18 March 2025, the First Respondent’s summary dismissal application proceeded to hearing before a Judicial Registrar of the Court. Both parties attended the hearing by Microsoft Teams and the Registrar delivered an ex-tempore judgment dismissing the Applicant’s substantive application pursuant to r.13.13(a) of the Rules on the satisfaction that the Applicant had no reasonable prospect of successfully prosecuting the proceeding (Registrar’s decision). The Applicant was ordered to pay the First Respondent’s costs in accordance with the scale amount for proceedings concluded at an interlocutory stage.
On 25 March 2025, the Applicant lodged an application for review of the Registrar’s decision which was accepted for filing on 2 April 2025 (Registrar Review Application) and supporting affidavit. It is that application with which these reasons are concerned.
On 9 May 2025, the Applicant lodged short submissions in respect of the Registrar Review Application which was accepted for filing on 12 May 2025.
In addition to the above, the First Respondent also filed a court book on 10 May 2024, an affidavit of service on 19 March 2025 and a further outline of submission on 19 May 2025.
On 21 May 2025, the Registrar Review Application was heard before the Court as presently constituted. The Applicant appeared without representation and by Microsoft Teams (at his request). The First Respondent was represented by a solicitor advocate.
The Court requested interpreter did not appear at the hearing. The Applicant confirmed that he could speak and understand English and wished to proceed with the hearing absent an interpreter. On an assessment of all the circumstances, including the knowledge that the Applicant had described his standard of English as competent in the original visa application and with regard to his wishes, the matter proceeded.
SHOULD THE APPLICATION FOR SUMMARY DISMISSAL BE ALLOWED?
The question of whether the substantive application ought to be summarily dismissed is required to be considered on a de novo basis.
Section 143 of the FCFCOA Act relevantly provides:
143 Summary judgment
(1) The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.
(5) This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975.
Rule 13.13 of the Rules in turn provides:
13.13 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
In considering an application for summary dismissal, the Court is concerned with whether the case raises a real or genuine dispute that might reasonably be resolved in an applicant’s favour as distinct from the identification of jurisdictional error in the Tribunal’s decision: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 (Judge Given) at [33] and the cases cited therein.
The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.
By the first ground of the substantive application, the Applicant contended but did not articulate an error of law. Taking the Applicant’s written and oral submissions to the Court at their highest, he was understood to take issue with the point in time at which the Tribunal and then the Registrar assessed whether the Applicant had a valid employer nomination. That is, at the time of the original visa application the Applicant did have a valid nominator (which business subsequently, and before the Tribunal made its decision, shut down due to the impact of the global COVID-19 pandemic) and now needs more time to secure a new employer nomination. Unfortunately for the Applicant, neither of those factors are of assistance where the legislation required him to have an approved nomination for the position to which the application relates at the time of the Tribunal’s decision: cl.187.233(3) of the Regulations; see also Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (Jagot, Bromberg and Mortimer JJ). For completeness, although the Applicant did not contend to the contrary, on the evidence the nomination refusal decision has not been successfully appealed and on the Applicant’s own case, nor could the nomination refusal decision be determined differently.
By the second ground of the substantive application, the Applicant contended but did not identify a denial of procedural fairness before the Tribunal. On the face of the decision, it is apparent that the Applicant was on notice of the dispositive issue (the non-approved nomination) since before the delegate’s decision was made but elected to pursue the matter. The Applicant was also and invited to attend a hearing before the Tribunal and availed of that opportunity, with the assistance of a representative. There is no apparent unfairness in the Tribunal’s decision to hear the two refusal decisions together where the Applicant was the nominator and the nominee.
For completeness, there was also no obligation on the Tribunal to refer the matter for ministerial intervention and is not a reviewable decision as expressed in AFG20 v Minister for Immigration & Anor [2020] FCCA 1361 (DJC Mercuri) at [121] – [124] citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ) at [24]:
[121] In any event, the real question in this ground is whether the tribunal’s consideration of the request for a referral for Ministerial intervention was a necessary part of the tribunal’s discharge of its review function and therefore any error in determining whether or not to make the recommendation could not amount to jurisdictional review.
[122] Deciding whether or not to refer a matter to the Minister for exercise of their discretion under section 417 is not part of the tribunal’s review function.
[123] Without determining whether there is any error in that decision making process, any such error cannot therefore amount to jurisdictional error, as it does not result in:
a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.’
[124] The tribunal’s powers are confined by the terms of the Act. Considering whether to refer a matter to the Minister for his consideration under section 417 of the Act is not such a power.
(Footnotes omitted)
Even if an error were able to be identified in the Tribunal’s approach or application of the law, in circumstances where the Applicant accepts (and at all relevant times has accepted) that he did not have a valid employer nomination at the time of the Tribunal’s hearing, and the nominator named in his employer nomination visa application no longer exists, there would be no utility in remittal of the matter for redetermination.
Costs
Upon summary dismissal of the application for judicial review, the Registrar ordered that the Applicant pay the First Respondent’s costs in the amount of $4,189.38. In the Registrar’s Review Application, the Applicant claimed hardship and sought a reduction of costs ordered by the Registrar. In respect of the First Respondent’s costs for the present review application, which they sought in the amount of $1,710 the Applicant was understood to seek a lesser amount by reason of hardship and affordability, indicating he would need more time to pay.
In the circumstances, the costs ordered and sought seem to be a reasonable amount that is appropriate to order.
For the above reasons, the application for review of the Registrar’s decision will be dismissed, with that decision being confirmed. In addition to order 2 of the Registrar’s orders made on 18 March 2025, the Applicant will be ordered to pay the First Respondent’s costs and disbursements, of and incidental to the review application, fixed in the sum of $1,710.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 28 May 2025
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