Shah v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1013
•3 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shah v Minister for Immigration and Citizenship [2025] FedCFamC2G 1013
File number(s): SYG 2135 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 3 July 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal - application for Regional Employer Nomination (Permanent) (Class RN) visa – whether the Tribunal failed to comply with the requirements of s 360(1) of the Migration Act 1958 (Cth) in failing to invite the applicants to a hearing and was wrong when it found it did not have jurisdiction – the Tribunal failed to comply with s 360(1) of the Act – whether the failure was material – whether relief ought to be refused on the basis of futility – application dismissed Legislation: Migration Act 1958 (Cth), ss 140GB, 338(2)(d)(iii), 347(1)(a), 347(1)(b)(i), 359A, 359A(1), 359B(2), 359C, 359C(2)(a), 359C(2)(b), 360, 360(1), 363A, 476, 477
Federal Circuit and Family Court of Australia(Division 2) (General Federal Law) Rules 2021 (Cth), r 7.01(1)
Migration Regulations 1994 (Cth), cll 186.23, 186.223(2) and 186.311 of Schedule 2
Cases cited: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095
Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 570
Hamod v New South Wales [2011] NSWCA 375
Haque v Minister for Immigration and Border Protection (2015) 298 FLR 375; [2015] FCCA 1765
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 45
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 2
Minister for Immigration and Citizenshipv SABA Bros Tiling Pty Ltd (2011) 194 FCR 11; [2011] FCA 233
Patel v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1017
Singh vMinister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 299 FCR 464; [2023] FCAFC 123
SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146
Zhang v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1043
Division: General Federal Law Number of paragraphs: 49 Date of hearing: 29 May 2025 Place: Sydney First Applicant: Appeared in person Second Applicant: No appearance Solicitor for the First Respondent: Ms M Ren of HWL Ebsworth Lawyers Solicitor for the Second Respondent Submitting appearance save as to costs ORDERS
SYG 2135 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAULIK MUKESHKUMAR SHAH
First Applicant
MAMTA MAULIK SHAH
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
3 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The name of the second respondent is amended to “Administrative Review Tribunal”.
3.The application 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 KAUR-BAINS
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 21 August 2020. The Tribunal found it did not have jurisdiction to consider the applicants’ application for review of a decision of a delegate of the Minister refusing the applicants Regional Employer Nomination (subclass 186) visas (visa). The first applicant is the primary applicant, who sought a visa in the Temporary Residence Transition stream to work in the nominated position of mechanical engineering technician. The nominator, Multiform Group Pty Ltd, is the Trustee for the MA Trust (nominator). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
The applicants’ judicial review grounds raise the following issues for determination:
(a)Whether the Tribunal failed to comply with the requirements of s 360(1) of the Act, in failing to invite the applicants to a hearing.
(b)Whether the Tribunal was wrong in finding that it did not have jurisdiction to review the delegate’s decision refusing the applicants the visa.
(c)Whether if jurisdictional error is established, relief should be refused on the basis that it would be futile.
For the reasons set out below, I find the Tribunal failed to comply with the requirements of s 360(1) of the Act, in not inviting the applicants to a hearing, and was wrong in finding that it did not have jurisdiction to review the decision of the delegate for the reasons. However, relief is refused as it would be futile to remit the matter to the Tribunal. This is because the criteria in cl 186.223(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which requires an approval of the nomination by the named nominator, cannot be satisfied as the nominator was placed in liquidation on 23 December 2019. There is no provision in the Act which permits the applicants to now link any new nomination to the applicants’ refused visa application.
BACKGROUND
The following background to the application is derived from the written submissions of the Minister, which I adopt, and to which I have made any necessary amendments.
On 27 June 2017, the first applicant, a male citizen of India, applied for the subclass 186 visa (Court Book (CB) 1 to 15). The applicant was nominated by the nominator to work in the nominated position of mechanical engineering technician (CB 7). The second applicant applied for the subclass 186 visa as a member of the same family unit (CB 3 to 4).
On 9 August 2017, a delegate of the Minister refused to grant the nominator's application for approval of the nominated position (nomination application) (Affidavit of Mengqi Ren affirmed 22 May 2025 (Ren Affidavit) Annexure MR-1). On 22 August 2017, the department wrote to the applicants informing them that the nomination submitted by the nominator had been refused and therefore the applicants’ visa application could not be approved without the said nomination. The letter drew to the applicants’ attention that they had two options, either to withdraw the application for the visas based on the nomination or if the applicants did not withdraw, the Minister would refuse the visa application as there was no approved nomination in place (CB 28 to 31).
On 29 August 2017, the nominator applied for review of the delegate's decision to refuse the nomination application to the Tribunal (Ren Affidavit Annexure MR-1).
On 27 September 2017, a delegate of the Minister refused the applicants' subclass 186 visa application (CB 36 to 43). The delegate found that the first applicant did not satisfy cl 186.223(2) of Schedule 2 to the Regulations because the nomination lodged by the nominator had been refused by the delegate on 9 August 2017 (CB 42).
Application for review to the Tribunal
On 16 October 2017, the applicants applied to the Tribunal for review of the delegate's decision and appointed a migration agent as their authorised recipient (CB 44 to 45).
Tribunal’s decision to decide the matter on the papers without a hearing
The Tribunal determined the matter on the papers without giving the applicants an opportunity to appear at the hearing, because the Tribunal in its letter dated 21 August 2020 (CB 57) stated that the applicants did not respond to the letter it sent by email to the applicants’ authorised recipient on 7 August 2020 (s 359A invitation) (CB 50 to 53) and therefore it would proceed to make a decision on the information available. The Tribunal then proceeded to make a decision on the papers without inviting the applicants to a hearing.
TRIBUNAL’S DECISION
The Tribunal noted the issue before it was whether the applicants were the subject of an approved nomination in accordance with the requirements of the Regulations ([10] of its reasons].
The Tribunal at [11] of its reasons noted the criteria for the subclass 186 visas applied for by the applicants were as set out in cl 186.223(3) of Schedule 2 to the Regulations, which required the first applicant be the subject of an approved nomination. The Tribunal noted that there was no approved nomination ([17] of its reasons). Since the nominator was placed into liquidation, the Tribunal found that it did not have jurisdiction to consider the applicants’ matter further ([18] of its reasons).
GROUNDS IN THE APPLICATION
The applicants’ application filed on 14 September 2020 contained the following ground for judicial review (as per original):
1.Administrative Appeals Tribunal had not acted in the best interest of the applicant ( procedural fairness issue ) as mentioned in affidavit attached here with .
PROCEEDINGS BEFORE THE COURT
The first applicant appeared at the hearing before me as a litigant in person, assisted by an interpreter in the Hindi language. Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [37]), I explained to the first applicant the role of the Court in undertaking judicial review. I ensured the first applicant was in possession of all relevant documents, namely the Court Book, application, supporting affidavit of the first applicant affirmed on 11 September 2020 (the first applicant’s affidavit), the Minister’s written submissions filed on 27 May 2025 and the affidavit of Ms Ren affirmed on 22 May 2025.
The applicants did not file written submissions but sought to rely on the first applicant’s affidavit, which was received by the Court on the basis that its contents contained submissions. In that affidavit, the first applicant contended that he was not in breach of cl 186.223 or any visa conditions, and he had tried to ensure he complied with his visa conditions. The applicant said the problem with the nomination was because the nominator had been placed into liquidation. The first applicant requested that the Court give due consideration to the “compelling and compassionate circumstances”, including in relation to familial issues, stress as a result of losing his job, the impact of the COVID-19 pandemic on his ability to depart Australia, as well as the fact that the first applicant had always complied with the visa condition and the nominator being placed into liquidation was beyond the first applicant’s control.
Further, the first applicant submitted that he wanted to attend a hearing before the Tribunal. The first applicant contended that he would have told the Tribunal he had fulfilled all his visa conditions and the fact that the nominator was in liquidation was not his fault. The first applicant submitted that he would have requested time to find another nominator to substitute into his current application.
The Minister relied on his written submissions filed on 27 May 2025, subject to withdrawing the concession set out at [21] of the Minister’s written submissions, where the Minister had conceded that the Tribunal failed to comply with s 360(1) of the Act.
The Minister also relied on the affidavit of Ms Ren, which was read without objection, as being relevant to the question of futility. The affidavit disclosed the history of the application by the nominator and that on 9 August 2017, the delegate refused the nomination application by the nominator, and that the nominator applied for review of that decision to the Tribunal, who in turn on 6 August 2020 affirmed the decision to refuse the nomination.
The Minister accepted the applicants’ application, and the contents of the first applicant’s affidavit received as submissions, raise the following two grounds for review:
(a)First, the Tribunal had breached s 360(1) of the Act, by failing to invite the applicants to a hearing.
(b)Second, the Tribunal incorrectly found it did not have jurisdiction to consider and determine the applicants’ application to review the delegate’s decision refusing the visa.
I granted leave to the applicants, pursuant to r 7.01(1) of the Federal Circuit and Family Court of Australia(Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), that the application be amended to raise the above two grounds set out at [19] of this judgment.
GROUND 1 - WHETHER THERE WAS A BREACH OF SECTION 360(1) OF THE ACT
The Tribunal in its letter dated 21 August 2020 (CB 57) stated that the applicants did not respond to the s 359A invitation to comment on or respond to the information. Therefore, the Tribunal decided it had power to proceed to make a decision pursuant to s 359C of the Act without taking any further action to obtain the applicants’ views on the information and inviting them to a hearing. To consider whether the Tribunal had breached the requirements of s 360(1) of the Act in failing to invite the applicants to a hearing, the following relevant statutory provisions in force at the time the Tribunal was determining the matter need to be considered.
Statutory provisions
Section 359A(1) of the Act imposes obligations on the Tribunal and relevantly provides as follows (compilation date 11 August 2020):
S 359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
Section 359B(2) of the Act relevantly provides the period in which the person must respond is the period specified in the invitation.
Section 359C of the Act sets out the consequences of a person failing to respond, relevantly as follows (compilation date 11 August 2020):
359C Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed; the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
Section 360 of the Act sets out the circumstances when a person needs to be invited to a hearing as follows (compilation date 11 August 2020):
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
……
(c) subsection 359C(1) or (2) applies to the applicant.
Section 363A of the Act provides as follows (compilation date 11 August 2020):
363A Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
Relevant facts
Invitation to comment
The s 359A invitation letter invited the applicants to comment on or respond to the information as follows (CB 52 to 53):
The particulars of the information are:
On 6 August 2020, the Tribunal affirmed the Department’s decision not to approve the nomination in relation to you made by your nominating employer The Trustee for the MA Trust.
The above information is relevant because cl. 186.223(2) requires that the nomination in relation to you by your nominating employer has been approved. If the Tribunal relies on this information, it may find that the nomination in relation to you has not been approved and consequently, the decision under review would be affirmed.
You are invited to give comments on or respond to the above information in writing.
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
Response
On 18 August 2020, the applicants’ representative sent an email to the Tribunal attaching correspondence from the applicants dated 14 August 2018 (sic) (CB 56), which included the following paragraphs:
I, Maulik Mukeshkumar Shah, am writing in relation to the letter you sent us on 7 August 2020- Invitation to Comment on Respond.
My ENS (186 visa) was lodged on 27 June 2017 but it was refused as the related nomination was unsuccessful. Accordingly, the AAT application for my visa was lodged on 16 October 2017 and received the acknowledgement letter on 18 October 2017.
Recently we received the unfavourable decision for Nomination from AAT and here I wish to appeal that:
•Since my 457 visa was granted on 25 March 2015, I have complied my visa conditions.
•I met the requirements for the ENS visa under Temporary Residence Transition Stream.
•At the time of the lodgement at the Department, the Business was actively operating and was not under External Administration.
•I have been in Australia for almost 5 years and have worked as a Mechanical Engineering Technician. I am confident that my work experience and skills would contribute to the Australian economics and development.
•Moreover, personally I don’t know about bank corrupt and as a sponsor they never informed me about that.
Further to the above points, under this COVID-19 situation, it will be very hard for me and our family going back to our home country.
On 21 August 2020, the Tribunal responded to the applicants’ authorised recipient saying that the applicants’ email asked the Tribunal to consider the first applicant’s personal circumstances but failed to address the issue as to the Tribunal’s jurisdiction given the refusal of the nominator’s review application. The Tribunal stated that it would proceed to deal with the matter on the information before it without a hearing. On the same day, on 21 August 2020, the Tribunal proceeded to deal with the applicants’ application for review on the papers and without a hearing.
Consideration
The first issue for determination is whether the Tribunal was correct that s 359C(2)(b) of the Act applied, because the applicants did “not give the comments or the response” to the s 359A invitation. The decision of Minister for Immigration and Citizenshipv SABA Bros Tiling Pty Ltd (2011) 194 FCR 11; [2011] FCA 233 (SABA Bros) (Jagot J) is of assistance in determining this question. The Federal Court was determining the same issue that arises in this case and made the following observations:
[18] The principal issue for determination is whether, on the facts as indicated, s 359C(2) applied to Saba Bros as provided in s 360(2)(c) of the Migration Act. If s 359C(2) applied to Saba Bros, as the Tribunal considered it did, Saba Bros was not entitled to appear before the Tribunal and the Tribunal was bound to proceed with the review as it did (ss 360(3) and 363A). If s 359C(2) did not apply to Saba Bros, the Tribunal was obliged to invite Saba Bros to appear before it in accordance with s 360(1). Breach of this obligation, the effect of which would be to deny Saba Bros a hearing, would constitute a jurisdictional error (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 and Minister for Immigration v SZIZO (2009) 238 CLR 627; [2007]HCA 37 at [34] and [36]).
[19] The Minister acknowledged that the question whether s 359C(2) applied to Saba Bros is a jurisdictional fact. As explained in Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135; [2000] HCA 5 (Enfield) at [28]:
The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.
[20] Applying this language to the present case, the “criterion” is the application of s 359C (2). For the section to apply the requirements of both subsections (a) and (b) must be satisfied: that is, the applicant must both have been invited to comment on or respond to information under s 359A (s 359C(2)(a)), and must not have given the comments or response before the time for giving them had passed (s 359C(2)(b)).
[21] The two sub-questions comprising the jurisdictional fact whether s 359C(2) applied to Saba Bros
[22] While the Tribunal was bound to determine that these jurisdictional facts existed (in order to proceed to one of the two mandated outcomes), its determinations regarding those facts are not final. If a fact is a jurisdictional fact, the Court on review is bound to determine for itself whether it existed based on the evidence before it (Enfield at [38] and [50]).
There is no issue in this case that the Tribunal sent a s 359A invitation as required by s 359C(2)(a) of the Act, and the applicants sent a reply within the time required in the s 359A invitation. The issue that arises is whether for the purposes of s 359C(2)(b) of the Act, the applicants did “not give the comments or the response” to the content of the s 359A invitation.
The Minister submitted that the applicants failed to respond or comment on the adverse information in the s 359A invitation, because the applicants did not address the adverse information but rather raised personal circumstances, which the Tribunal had no power to consider when determining whether the criteria for the visa had been satisfied. The Minister also referred to the decision of Haque v Minister for Immigration and Border Protection (2015) 298 FLR 375; [2015] FCCA 1765 (Haque). However, that decision is of no assistance as the Court in that case found that the applicant had simply asked for a copy of the report, being the adverse information, and that was not a “response”. I noted that, in that case in Haque, the Court’s attention was not drawn to the decision of Justice Jagot in SABA Bros.
Relevantly in SABA Bros, Justice Jagot observed at [30] to [32] the following:
[30] Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: “comment on or respond to” the information in the case of s 359A(1)(c), and “the comments or the response” in the case of s 359C(2)(b). This indicates that an applicant may either “comment on” or “respond to” the information in the invitation, or both comment on and respond to the information. The choice – to comment, respond or both – is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines “to comment” as “to make comments or remarks [upon]”; by contrast, “to respond” is simply “to answer in speech or writing; to reply”. An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.
[31] It is true that s 359C(2)(b), read with s 359A(1)(c), requires a response to the information in the invitation. But beyond that the Migration Act imposes no minimum requirement of content for a response or a comment. Accordingly, on the face of the provisions, any reply or answer directed to the information itself will constitute a response.
[32] Nothing in the context of or purpose underlying the relevant provisions indicates that the word “respond” should be given other than its ordinary and natural meaning of “to answer” or “to reply”. As Saba Bros submitted, the option of responding to (as opposed to commenting on) information under s 359A was inserted into the Migration Act by the Migration Amendment (Review Provisions) Act 2007 (Cth). If, as the Minister contended, a “response” requires an applicant expressly to state a position in relation to the information, the distinction between comment and response introduced by Parliament in 2007 would be rendered redundant.
In that case Her Honour held at [33] that on the basis of the ordinary and natural meaning of the word “respond” contained in s 359C(2)(b), the applicant had responded to the adverse information referred to in the s 359A letter, because the applicant noted the adverse information and said he wanted to attend the hearing. Her Honour said at [33]:
[33]Contrary to the Minister’s submission, the fact that the consequence of not making a response or comment is the loss of the entitlement to a hearing which would otherwise exist supports a construction of s 359C(2)(b) which does not import into the section any subjective requirement relating to the content or quality of the comments or response.
Similarly, I find in this case that the first applicant’s letter dated 14 August 2018 (sic) referred to in [28] of this judgment was a response to the adverse information in the s 359A invitation for the following reasons:
(a)First, the first applicant made clear he was writing in relation to the s 359A invitation. Therefore, I find he was indicating that he had considered the contents of the s 359A invitation, including the adverse information.
(b)Second, the first applicant stated that at the time of lodgement of the visa application, the nominator was operating and not in liquidation, thereby I find that the applicant was engaging with the adverse information.
(c)Third, the first applicant raised his personal circumstances and asked that to be taken into account. Clearly, the Tribunal had no power to take those matters into account. However, for there to be a response for the purposes of s 359C(2)(b), there is no statutory requirement that an applicant’s response or comment be legally correct.
Accordingly, I find there was a response to the s 359A invitation. The Tribunal was wrong in proceeding to determine the matter on the papers without giving the applicants an opportunity to appear at the hearing.
Whether breach was material and whether relief ought to be refused on the basis of futility
The Minister submitted that if I find the Tribunal was wrong not to invite the applicants to a hearing, then in any event the error was not material so as to amount to a jurisdictional error. The Minister referred to LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 2. At [7], where the High Court held that:
[7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a “threshold of materiality” in the event of non-compliance (emphasis added)
The Minister contended that given the applicants were not the subject of an approved nomination and given the nominator was in liquidation, there was no possibility the applicants could have satisfied the criteria for the visa set out in cl 186.223(3), for the nomination to be the subject of an approval. Therefore, the Minister submitted that there was no realistic possibility the decision that was made by the Tribunal in fact could have been different if the applicants had been invited to a hearing.
The first applicant argued that if he had been invited to a hearing, he would have asked the Tribunal for more time, so he could apply for another nomination. The Minister responded that for the visa application in question, there was no provision in the Act or the Regulations which would enable the applicants to link another nomination to the visa application once the delegate made a decision. The Minister referred to the decision of the Full Federal Court in Singh vMinister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 (Singh) at [83] to [88], where the following was said:
[83] The appellant’s contention depended on a particular construction of the phrase “the nomination” in cl 187.233(3) of the Regulations which, effectively, the appellant contended, was not limited to the original nomination which accompanied the visa application.
[84] To recall, cl 187.233 relevantly provides:
(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) subparagraph 5.19(4)(h) ii); or
…
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
…
(3) The Minister has approved the nomination.
…
[85] The only limit, the appellant contended, was that “the nomination” would have to be for the same position and the same employer. Otherwise, there was no limit on how many times an employer could nominate a position and employee during the currency of the visa application. Inherent in the appellant’s argument appeared to be the contention that circumstances could change so that a formerly unsuccessful nomination for the same position and the same employee might later be approved by the Minister. Since reg 5.19 mandates approval in certain circumstances, it is not inconceivable that a previously unsuccessful nomination could, with various changes of circumstances, eventually be one which the Minister was required to approve. However that hypothesis does not assist the appellant in the construction of cl 187.233.
[86] The appellant’s argument relates to the construction of the words “the nomination” in para (3) of cl 187.233, but does not grapple with the terms of subparas (1)(a) and (b).
[87] In his written submissions, the Minister submits (at [37]):
Clause 187.233(1) of Schedule 2 imposes a single requirement, albeit one that is expressed in two paragraphs for ease of reference. Thus, the provision could have been expressed, and should be understood, as follows:
(1) The position to which the application relates is the position nominated in an application for approval that seeks to meet the requirements of subparagraph 5.19(4)(ii) [sic (4)(h)(ii)] … in relation to which the declaration mentioned in paragraph 1114C(3)(d) was made in the application for the grant of the visa.
[88] That submission should be accepted. In my opinion the criterion 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.
The Minister also submitted that even if I found the error was material, such as to give rise to a jurisdictional error, the Court should refuse relief on the basis that to grant the applicants relief would be futile as “no useful result would ensue” for the following reasons:
(a)First, the nomination by the nominating employer was refused and that decision was not altered on review (Ren Affidavit at [4], [7] and Annexure MR-1);
(b)Second, there was no judicial review application in relation to the nomination application (Ren Affidavit at [4], [7] and Annexure MR-1); and
(c)Third, the first applicant was now unable to link any new nomination to the refused visa application (Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 299 FCR 464; [2023] FCAFC 123 at [141]).
The Minister also argued that:
Having regard to the above, remitting the matter to the Tribunal for reconsideration would not be capable of rendering any decision other than to affirm the refusal on the basis that the Applicant did not meet cl 186.233 of the Regulations. The judicial review application is therefore futile: see Ghimire v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 570 at [36], Patel v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1017 at [47], Zhang v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1043 at [73] and Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 45 at [55].
The Full Court in Singh considered the relevant provisions of cl 187.233(1), which are similar to cl 186.223, and observed the following at [88]:
[88]That submission should be accepted. In my opinion the criterion 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.
Given the decision of the Full Federal Court in Singh, I accept the Minister’s submission that the applicants could not link a new nomination to the refused visa application. Therefore, I find that the error in not inviting the applicants to a hearing was not material, because even if the Tribunal had given the applicants more time to find a nominator, the first applicant could not link that nominator to his current application for the visa, which was still on foot.
If I am wrong and the failure to comply with s 360(1) of the Act was material, then I also find that it would be futile to grant relief because no useful result would ensue by remitting this matter to the Tribunal. This is because the Tribunal can only affirm the delegate’s decision to refuse the visa, as there is no question that the nominator had not obtained an approval for the nomination. Further, given the nominator is in liquidation and there is no evidence to suggest that the nominator seeks to come out of external administration and seek an extension of time to seek judicial review. Thus, there is no possibility that the Tribunal, on remittal, could do anything other than affirm the decision of the delegate.
GROUND 2 – WHETHER THE TRIBUNAL HAD JURISDICTION?
The Minister submitted that the Tribunal was wrong when it said at [18] of its decision that it had no jurisdiction to consider the applicants’ application for review. I find that the Tribunal had jurisdiction and ought to have so found for the following reasons:
(a)The applicants made the application in the approved form in accordance with s 347(1)(a) of the Act.
(b)The applicants made their application to the Tribunal 19-days after the date of the delegate's decision, which was within the prescribed 28-day period under s 347(1)(b)(i) of the Act.
(c)The delegate's decision was a Part 5 reviewable decision pursuant to s 338(2)(d)(iii) of the Act, because at the time of the delegate's refusal decision on 27 September 2017, the decision under s 140GB of the Act not to approve the nomination application lodged by the nominator and relating to the applicants was pending in the Tribunal.
However, the Minister contended that for similar reasons as stated above, even if the Tribunal’s error in finding that it did not have jurisdiction was material, the Court should exercise its discretion to refuse to grant the relief sought on the basis of futility. For the reasons set out from [37] to [45] of this judgment, I agree with the Minister that it would be futile to grant relief and remit the matter to the Tribunal.
Self-evident jurisdictional error
Given the applicants were self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]. I have not identified any such jurisdictional error.
CONCLUSION
As it would be futile to grant relief from the disclosed jurisdictional error, the application must be dismissed.
COSTS
I will hear the parties as to costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 3 July 2025
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