Singh v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1309
•15 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Citizenship [2025] FedCFamC2G 1309
File number(s): MLG 1086 of 2020 Judgment of: JUDGE JOHNS Date of judgment: 15 August 2025 Catchwords: MIGRATION – application for judicial review –employer nomination (subclass 186) 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), ss 359A, 476, 476 2(a)
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 256(1).
Federal Court Rules 2011 (Cth) r 3.11
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, schedule 2 part 2 division 1
Migration Regulations 1994 (Cth), cl.186.233, cl 186.311 of Schedule 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 and Border Protection [2015] FCA 1391
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 438
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: 83 Date of hearing: 13 August 2025 Place: Melbourne Applicant: Sandeep Singh appeared on his own behalf Solicitor for the First Respondent: Matthew Daly, solicitor Mills Oakley Second Respondent Submitting appearance, save as to costs ORDERS
MLG 1086 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP PAL SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINSTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JOHNS
DATE OF ORDER:
15 AUGUST 2025
THE COURT ORDERS THAT:
1.The application filed on 1 August 2025 for an extension of time (to file an application for review of a registrar’s decision) is dismissed.
2.The Applicant pay the First Respondent’s costs and disbursements of, and incidental to, the proceeding fixed in the amount of $1,675.75.
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
This decision is about whether Sandeep Pal Singh should be granted an extension of time to seek a review of a decision of a Registrar of this Court.
In short, the background to the matter is as follows:
(a)A delegate of the relevant Minister refused Mr Singh a Permanent Employer Sponsor visa because, at the time of the decision, Mr Singh did not have an approved nomination employer; a fact fatal to the application for his visa, and one that could never be cured.
(b)The Tribunal affirmed a decision of the Delegate.
(c)The Registrar dismissed Mr Singh’s application for judicial review of the Tribunal’s decision. The Registrar was satisfied the application to this Court had no reasonably prospects of success.
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 Mr Singh an extension of time to file the review of the Registrar’s decision. That is because the present application was filed 17 days late.
For the reasons that follow, the application for an extension of time is dismissed. Consequently, there is no application before the Court to review the decision of the Registrar. That means the decision of the Registrar (to dismiss the Applicant’s application for judicial review of a decision of the Tribunal) prevails.
FACTUAL BACKGROUND
On 17 October 2016, Mr Singh (Applicant), a citizen of India[3], lodged an application for a Employer Nomination (Permanent) (subclass 186) visa under the Temporary Residence Transition stream (Nomination Visa).[4]
[3] Court Book (CB) 2.
[4] CB 1-10, 112.
The Applicant was nominated for the position of restaurant manager by his employer, Shane Singh (Nominator) in his business “Berwick Indian @ the Courthouse”.[5] The Applicant commenced employment with the Nominator on 1 September 2014.[6]
[5] CB 5-6, 101.
[6] CB 6.
The Applicant appointed a migration agent Amber Gupta of “Migration Consultants Melbourne”.[7]
[7] CB 4.
On 8 May 2017, the then Department of Immigration and Border Protection issued a letter to the Applicant, advising him that the nomination submitted by Mr Singh had been refused.[8] The Applicant was invited to respond within 28 days, failing which the nomination visa would be refused. [9] No response was received.[10]
[8] CB 114.
[9] CB 115.
[10] CB 124.
On 12 September 2018, a delegate from the then Department of Home Affairs (Delegate) refused the nomination visa on the basis that the underlying nomination had been refused, and thus, the criteria in cl 186.233(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was not satisfied.[11] By operation of s 476(2)(a) of the Migration Act 1958 (Act), this Court has no power to review the decision of the Delegate.
[11] CB 119, 123-5.
On 30 September 2018, the Applicant applied to the then Administrative Appeals Tribunal (Tribunal) for review of the Delegate’s decision.[12]
[12] CB 126-7.
On 7 February 2020, the Applicant was invited by the Tribunal to attend a hearing on 10 March 2020. Enclosed in the hearing invitation was a ‘Response to hearing invitation - MR Division’ form.[13]
[13] CB 132-3.
On 14 February 2020, the Applicant responded to the hearing invitation with the completed form confirming his attendance at the hearing.[14]
[14] CB 134-7.
On 10 March 2020, the Applicant appeared in person before the Tribunal.[15]
[15] CB 138-140.
On 10 March 2020, the Tribunal affirmed the Delegate’s decision. The Tribunal found that the visa application could not succeed without an approved nomination.[16]
PROCEEDINGS IN THIS COURT
[16] CB 148-150.
Judicial review application
On 31 March 2020, Mr Singh filed an application with this Court under s 476 of the Act (Originating Application), seeking judicial review of the Tribunal’s decision.
The Originating Application sought to quash the decision of the Tribunal (writ of certiorari) and have the matter remitted back to the Tribunal for reconsideration according to law (writ of mandamus).
The Originating Application contained 10 grounds of review (addressed below).
On 17 June 2025, the First Respondent (Minister) filed a response which sought, among other orders, that the matter be summarily dismissed (Summary Dismissal Application) pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
Summary dismissal hearing
On 27 May 2025, a Registrar of this Court made orders programming the Summary Dismissal Application for hearing. The orders directed the parties to file submissions. Orders were also made amending the name of the First Respondent to the Minister for Immigration and Citizenship.
Only the Minister complied with the orders, filing submissions on 17 June 2025.
On 8 July 2025, the Registrar acceded to the Minister’s application to summarily dismiss the Originating Application.
Filing of Review Application
On 1 August 2025, the Applicant lodged the Review Application. The orders sought by the Applicant include that the review application be accepted by the Court and the Registrar’s Decision be set aside.
Also on 1 August 2025 the Applicant filed an affidavit (1 August 2025 Affidavit). The 1 August 2025 Affidavit contained email correspondence between the Applicant and the Court and Tribunal Services of the Federal Court of Australia and this Court. In the correspondence the Court responded to telephone enquiries made by the Applicant (first on 16 July 2025) about the time limit for seeking review of a registrar’s decision. The responses did not notify the Applicant that he had 7 days to apply for the review of the Registrar’s decision in the General Federal Law jurisdiction. However, noting that the Applicant’s first enquiry with the Court was on 16 July 2025, the application for review of the registrar’s decision was already out of time. The Applicant conceded the same before the Court as presently constituted.
The matter was allocated to the Court as presently constituted on 6 August 2025. On the same day, the matter was listed for hearing on 13 August 2025.
On 7 August 2025, this Court informed the parties that the Review Application was made 17 days outside of the time prescribed by the Rules to seek such a review. The parties were provided with an opportunity to file written submissions addressing each of the factors relevant in the exercise of the Court’s discretion to extend the time for the filing of the Review Application.
On 11 August 2025, in compliance with the Orders, the Minister filed submissions.
Hearing of the Review Application
On 13 August 2025, the Review Application was heard by this Court in the Melbourne Registry. The:
(a)Applicant appeared on his own behalf; and
(b)Minister was represented by Matthew Daly, solicitor at Mills Oakley.
At the commencement of the hearing, the Court:
(a)explained to the Applicant that:
(i)the Court cannot set aside the decision of the Tribunal unless there is an arguable case of jurisdictional error. The main categories of jurisdictional error were explained;
(ii)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; and
(b)confirmed with the Applicant that they had read the email sent to the parties on 7 August 2025 which explained the principles relevant to granting an extension of time for filing a Review Application. The Court repeated those principles and invited the Applicant to address the Court about each of the considerations relevant to an extension of time.
Noting that the Applicant was unrepresented, the Court gave the Applicant an opportunity to elaborate on his 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[17].
[17] [2019] FCA 600, [7].
Before the Court, the Applicant availed himself of the opportunity to make oral submissions.
Mr Daly made submissions on behalf of the Minister. The submissions are referred to below.
RELEVANT RULES AND PRINCIPLES
Section 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 8 July 2025. Pursuant to r 21.02 of the Rules, the Applicant had until 15 July 2025 to lodge his Review Application. As he did not do so until 1 August 2025, the Applicant is 17 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 does 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[18] and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[19]. 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.
[18] (1984) 3 FCR 344.
[19] [2022] HCA 28; (2022) 276 CLR 579, [12].
When determining if a proposed application has “merit” or an “arguable prospect of success”, the Court will do so at a “reasonably impressionistic level”.[20] 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.[21]
[20] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, [61].
[21] MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392, [113] (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.
The Minister made oral submissions and relied on its written submissions filed on 17 June 2025 and 11 August 2025, submitting that an extension would be futile because if the matter was remitted to the Tribunal it would have to make the same decision (because the Applicant never had an approved employer nomination at the time of the decision – a fact that remains true today). The Court incorporates (without repetition) paragraphs 21 to 34 of the Minister’s outline of submissions filed 17 June 2025 and paragraphs 7 to 11 of the Minister’s outline of submissions filed 11 August 2025.
Extent of the delay
Before the Court, the Applicant accepted that the delay in lodging the Review Application was 17 days.
The delay is modest. However, the efficient administration of justice necessitates the observance of time limits. This factor weighs against granting the Applicant an extension of time.
Explanation for delay
Before the Court, the Applicant explained he made enquiries about the time limits for review by calling the Court and that he also received responses by email. None of the correspondence with the Court (contained in the 1 August 2025 Affidavit) specified that the Applicant had seven days in which to seek a review of the Registrar’s decision. The Applicant explained he was unaware of the 7 day timeframe and made enquiries to establish this information. Not all of the emails refer to reviews of a registrar’s decision. It may be that the person who spoke to the Applicant misunderstood the query being made. It may be that the Applicant asked the wrong question. The one email from [email protected] that does refer to a review from a registrar’s decision gave the correct information[22] (referring to 21 days), if the Applicant was seeking a review of a registrar’s exercise of power in the Federal Court. The Applicant also detailed his other endeavours to find this information, including through various sources such as Google and contacting a migration agent. He said he received varied information about different time limits. None of the correspondence gave information about the 7-day time limit.
[22] Federal Court Rules 2011 (Cth) rule 3.11.
The Court also notes that the Court’s email of 8 July 2025 with the attached Orders of the summary dismissal 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, the omissions in the Court’s correspondence and lack of clarity may have contributed to the Applicant’s confusion. That omission may merit attention by those responsible for Court’s information services 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. Given the Applicant’s desire to engage with the judicial review process, the onus remained on him to ensure that he filed his application within the set timeframe.
Before the Court the Applicant confirmed that the first time he contacted the Court was on 16 July 2025, when the application was already one day out of time. That does not demonstrate sufficient diligence on his behalf. If he was unsure about the process, he could have sought more timely professional advice and not relied on the Court.
This factor weighs against granting the Applicant an extension of time.
Prejudice
The Minister accepts that there is no substantial prejudice that could not be remedied by a costs order. However, the “the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing”.[23]
[23] EYY18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 947, [49], citing SZTRYvMinister for Immigration & Border Protection [2015] FCAFC 86, [6].
This factor is thus 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.
At the hearing, the Court took the Applicant to the grounds of review contained within the originating application.
Ground One
1.I applied an Employer Nomination Visa subclass 186 (Permanent) (Class EN) on 17 Oct 2016.
Ground Two
2.The department of Home affairs refused the visa on 12 Sep 2018 mentioning that they were not satisfied that I have met the Cl. 186.223 of schedule 2 of the regulations.
Ground Three
3.After the visa was refused by the department, I got very disappointed because I was not expecting this outcome. After this I consulted my migration agent and I applied for a review in the Administrative Appeal Tribunal.
Grounds One, Two and Three are descriptions or narratives of what happened in the time between the Applicant’s visa application and the application for review of the Delegate’s decision with the Tribunal; they are not proper grounds of review. Accordingly, Grounds One, Two and Three do not establish a reasonably arguable case of jurisdictional error on behalf of the Tribunal.
Ground Four
4.The Tribunal invited me to comment on my case on 10 March 2020, therefore I appeared on the day. On arrival even before hearing started the tribunal member told me and all other applicants present on the day that there is nothing that they can do. When the hearing officially started, I explained my situation and circumstances that led to this visa outcome. She agreed that I was never at fault and the situation and circumstances that led to this visa outcome were not in my control. She could only pass her good wishes to me only. However, the tribunal affirmed the department's decision.
At the hearing, the Court asked the Applicant what was wrong with the statement made by the member. The Applicant replied that he did not know and submitted many applicants were also rejected.
The Court put to the Applicant that on 12 September 2018 when the Delegate refused the Visa and on 10 March 2020 when the Tribunal affirmed the Delegate’ decision, the Applicant did not have an approved nominator. The Applicant accepted that he did not have an approved nominator at any time.
A condition of the visa was that the Applicant had an underlying nomination, he did not. The Tribunal made the only decision that it could possibly make from the evidence before it and informed the Applicant of this fatal fact at the Tribunal hearing. There was nothing improper in the Tribunal explaining that fact to the Applicant.
Ground Four does not establish a reasonably arguable case of jurisdictional error on behalf of the Tribunal.
Ground Five
5.I informed them that when I applied for the visa through migration agent, I had met all the mandatory requirements to get the visa approved. The migration agent told me that the visa was refused due to the refusal of nomination referred in the visa application. The agent further told me that the nomination was refused because of lack of communication between the department of home affairs and restaurant owner and/or myself. Since I was working as restaurant manager, I would have answered all the queries of the department. However, the department did not send any communication before refusing the nomination application. Due to this error done by the department, both my employer and I were going through bad times, gone into worse.
Ground Five provides a narrative of what happened between the Applicant, his employer and the Department. It is a complaint about the conduct of the Department. The Court only can review the Tribunal’s decision.[24] This ground does not appear to be directed at the Tribunal and therefore does not establish a reasonably arguable case of jurisdictional error on behalf of the Tribunal.
[24] s 476 2(a) Migration Act 1958 (Cth).
Ground Six
6.The refusal shattered all my dreams to take the restaurant to new heights as my moral went very low and felt very helpless. At the same time, I was going through worse situation in my married life. All these factors together led to the collapse of my marriage and my wife got separated from me.i had only one child. My wife went oversees with my only loving child. Due to this I have suffered a lot in terms of physical and mental stress.
Ground Six is a statement of the impact of the visa refusal. The Court is sympathetic to the Applicant, however Ground Six does not establish a reasonably arguable case of jurisdictional error on behalf of the Tribunal.
Ground Seven
7.The department of home affairs did huge jurisdictional error by not providing any opportunity to my employer to comment on the financial situation of the restaurant. They should have asked the restaurant owner for a clarification about the current financial position of the business and future growth plans. The delegate refused the nomination resulting my visa refusal, which deeply impacted my life in a bad way. I shall explain more when I get opportunity to speak in the honourable court.
As stated in this Courts consideration of Ground Five, the Court only can review the Tribunal’s decision. These matters raised in this ground are irrelevant to the decision under review before the Court. Any concerns about the Department vis-à-vis the employer were matters for the employer or Nominator to take up with the Department. The employer had its own pathway for review, and there is nothing before the Court that they pursued that successfully.
Ground Seven does not establish a reasonably arguable case of jurisdictional error on behalf of the Tribunal.
Ground Eight
8.I further say that the department of home affairs did not follow procedural fairness in deciding my application and treated me in a very unfair way. This visa refusal which was none of my fault at all affected me in most disastrous way. I spent most productive and prime period of my life in the period following the visa refusal. After all this, ifI fail to get the visa, I would not have a stable life. I feel like I have been punished very severely for something I have not done.
Ground Eight is directed at the Delegate, the Court only can review the Tribunal’s decision. Even if, for the benefit of the Applicant, this ground is taken to refer to the Tribunal, it does not demonstrate an arguable case of jurisdictional error. This is because it is very clear that the Tribunal afforded the Applicant procedural fairness in inviting him to a hearing, conducting a hearing and considering all the material put before the Tribunal. However, in the absence of an approved employer nomination, the Tribunal made the only decision open to it.
Ground Eight does not establish a reasonably arguable case of jurisdictional error on behalf of the Tribunal.
Ground Nine
9.I would like to bring this to the notice of the court that the Administrative Appeal Tribunal errored too. They failed to take into consideration the errors made by DHA during the appeal process. The tribunal should have considered all these factors and personal situations and, provide a fair trial. They only their inability to do anything, showing as if they had already decided that they will not do anything. They acknowledged the fact that me or my employer were not at fault at any time during the process. Had the DHA or the tribunal not made these mistakes and given us a chance to provide an explanation, the results would have been different all together.
Ground Nine contends that the Tribunal should have considered other factors which were relevant to the visa application and that the Applicant was not provided with an opportunity to explain these factors.
Alleged errors made by the Department, personal factors and who was at fault, does not change the fatal fact that the Applicant did not have an approved nominator. Affirming the Delegate’s decision was the only decision the Tribunal could make, and the matters raised by the Applicant are irrelevant. It is very clear that the Tribunal did the task required of it by the Act – i.e. to review the decision of the Delegate.
To the extent that this Ground raises that the Applicant was not afforded procedural fairness, this must be rejected. He attended a hearing on 10 March 2020 and had the opportunity to provide evidence and make submissions.
Ground Nine does not establish a reasonably arguable case of jurisdictional error on behalf of the Tribunal.
Ground Ten
10.The tribunal thus fell into jurisdictional error when it failed to act in a manner that was just and fair in all the circumstances responsible for the outcome.
Ground Ten lacks particulars., At the hearing the Applicant made no submissions to explain this ground.
In all the circumstances, the Tribunal reached an outcome which was open to it. The Applicant accepted that if the Court remitted this matter to the Tribunal they would be bound to make the same decision and refuse the visa.
Ground Ten does not establish a reasonably arguable case of jurisdictional error on behalf of the Tribunal.
Grounds in application for review of Registrar’s decision
The Court has considered the “grounds of review” contained in the Review Application, on an impressionistic level, none of them (individually or cumulatively) disclose jurisdictional error. The grounds were mainly directed at the Registrar for not affording the Applicant procedural fairness or not applying the correct legal test in the summary dismissal decision. As explained above, this Court is conducting a hearing de novo. That is to say, this decision is not concerned with correcting any error on behalf of the Registrar.
Any other matters
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 Originating Application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error on an impressionistic level. The Court has also read the Applicant’s substantive grounds and the “grounds of review” in the Review Application as broadly as possible and remain alive to the possibility of a reasonably arguable case 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 nor the Review Application. In any case the issue of futility renders the grounds for judicial review otiose.[25]
[25] Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 438 at [68].
Futility
The matter can be simply disposed of on the basis of futility. That is, even if the Applicant was 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 employer 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. The Tribunal in a procedurally fair way put this to the Applicant and provided him with an opportunity to respond,[26]
12.The Tribunal then confirmed that on 8 May 2017, the nomination lodged by Mr Shane Singh, being the nomination referred to in paragraph 186.223(1), was refused by a delegate for the Minister for the Department of Home Affairs.
13.The applicant was asked whether he agreed with the above, to which he responded that he did and further confirmed that his nominator had sought review of the employer nomination refusal and this had been affirmed by the Tribunal.
14.The Tribunal explained to the applicant that in the absence of any evidence that the position to which the application relates is the subject of an approved nomination, it is inclined to make a decision to affirm the decision of the delegate. The applicant was asked whether he wished to respond to this concern.
15.The applicant made submissions regarding his employment with the nominator and the circumstances surrounding the nomination refusal. The Tribunal told the applicant it noted his submissions but it remained that there is no evidence that the position to which the nomination relates is the subject of an approved nomination. The applicant agreed.
[26] CB 150 [12-15].
In those circumstances the decision of the Delegate had to be affirmed by the Tribunal. Consequently, the Court would, in the exercise of its discretion, be obliged to refuse relief to the Applicant.[27]
[27] SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297; [2007] HCA 26.
Because the grounds of review have no merit because 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.
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, 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.
In its submissions the Minister sought a further order that the “The Applicant pay the First Respondent’s costs in a fixed amount of $1,675.75”.
The Court explained to the Applicant that:
(1)it had not made a decision about his application;
(2)the Minister is seeking costs in the event that it is successful;
(3)in deciding the question of costs, the Court is required to consider:
(a)whether it is appropriate that the Applicant should pay any costs at all, noting that the usual rule in courts in Australia is that an unsuccessful party pays the party/party costs of the successful party; and
(b)if the Court is so satisfied that the Applicant should pay costs, what is the reasonable quantum.
The Court then invited the Applicant to make a submission about costs in the event that he is unsuccessful, and his application is dismissed. The Applicant submitted, if the application were to be dismissed, “there will be no option other than to pay”.
The Court is satisfied that costs ought to follow the event, and that it is appropriate to make an order in the amount sought by the Minister which is at the scale costs[28], given the amount of work undertaken as evidenced by the court file.
[28] Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2 pt 2 div 1.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns. Associate:
Dated: 15 August 2025
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