Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 633
•6 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 633
File number(s): MLG 911 of 2020 Judgment of: JUDGE FARY Date of judgment: 6 May 2025 Catchwords: MIGRATION – Migration Act 1958 (Cth) – Application for Regional Employer Nomination (Class RN) (Subclass 187) visa – Administrative Appeals Tribunal not satisfied that the applicant had a valid nomination as required by cl.187.233(3) and affirmed Delegate’s decision to refuse the application for the Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed. Legislation: Australian Constitution s75(v)
Migration Act 1958 (Cth) s 357A, 360, 363(1), 474, 476, 477, Division 5 of Part 5
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 of Pt 2 of Sch 2
Migration Regulations 1994 (Cth) cl 187.233, cl 197.211
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of last submission/s: 1 May 2025 Date of hearing: 1 May 2025 Place: Melbourne First Applicant: In person Second Applicant: In person Third Applicant: First and Second Respondent as litigation guardians Solicitor for the First Respondent: Ms Baras-Miller, Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 911 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAGJIT SINGH
First Applicant
VARINDERJIT KAUR
Second Applicant
JUGRAJ SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
6 MAY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $3,800.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Fary
INTRODUCTION
By an Application filed in this Court on 8 October 2020 (Application), the Applicant seeks judicial review of the decision of Administrative Appeals Tribunal (Tribunal) dated 28 February 2020 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Regional Employer Nomination (Class RN) (Subclass 187) visa (Visa) on the basis that the nomination lodged by Far Qld Pty Ltd referred to in paragraph 187.233(1) was withdrawn. As the appointment was withdrawn, the Applicant does not meet the requirements pursuant to cl 187.233 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
The hearing of the Application took place at the Melbourne Registry of the Court on 1 May 2025 (Hearing). The Minister was represented by a solicitor. The Applicant and his Wife were self-represented with the aid of a Punjabi interpreter. At the conclusion of the hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 1 May 2025, Order 1.
ISSUE IN DISPUTE
The issues in dispute include whether the Tribunal failed to provide the Applicants procedural fairness during the Tribunal hearing on 28 February 2020 (Tribunal Hearing), failed to exercise its discretion to adjourn the Tribunal Hearing, and failed to consider the Visa pursuant to cl 187.233 of Schedule 2 of the Regulations (cl 187.233) on the basis of the withdrawal of the employer nomination without ‘further investigation’.
BACKGROUND
The Court has before it a Court Book with 115 pages filed by the Minister on 27 July 2020 (Court Book). The Court has reviewed the Court Book in detail. The Outline of the Minister’s Submissions, filed 14 April 2025 (Minister’s Submissions) accurately summarise the background to this matter at [3] to [10]. The Court adopts those submissions with specific details emphasised as follows.
The Applicant and his family are citizens of India.
On 24 November 2016, the Applicant and his family applied for a Regional Employer Nomination Subclass 187 Visa via the Direct Entry stream. The criteria for the grant is set out in Schedule 2 to the Regulations.[2]
[2] Court Book (CB) 109.
On 30 November 2018, a Delegate of the Minister wrote to the Applicants and advised the First Applicant that the employer, Far Qld Pty Ltd, had withdrawn their nomination for him, such that the Application for the Visas could not be approved. The Delegate invited the Applicant to comment on the above information within 28 days.[3]
[3] CB 65.
On 4 January 2019, following the absence of a response to the invitation to comment, a Delegate of the Minister refused the Application (Delegate’s Decision).[4]
[4] CB 70.
On 23 January 2019, the Applicant sought review of the Delegate’s Decision before the Tribunal (Review Application).[5]
[5] CB 82.
On 25 January 2019, the Tribunal wrote to the Applicant acknowledging receipt of the Application.[6]
[6] CB 84.
On 7 February 2019, the Applicant wrote to the Tribunal rectifying a mistake in the nationality section where ‘Australian’ was accidently selected instead of ‘Indian’.[7]
[7] CB 87.
On 6 February 2020, the Applicants were invited to attend a hearing before the Tribunal on 28 February 2020 (Hearing Invitation).[8]
[8] CB 89.
On 12 February 2020, the Applicant responded that he would attend the hearing and would require a Punjabi interpreter.[9]
[9] CB 91.
On 28 February 2020, the Applicant attended the Tribunal hearing with the assistance of a Punjabi interpreter. The Tribunal affirmed the decision under review and oral reasons were provided [10]
[10] CB 91-95.
On 4 March 2020, the Applicant wrote to the Tribunal requesting that written reasons be provided.[11]
[11] CB 102.
On 16 March 2020, the Tribunal provided written reasons for the Tribunal’s Decision.[12]
[12] CB 98.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 108 to 115 of the Court Book.
The Tribunal examined the requirements of cl 187.233, and noted that the criterion could not be satisfied by a later nomination submitted by a different employer or by the same employer.[13]
[13] CB 109.
The Tribunal noted that the First Applicant had requested additional time to find a new employer. In response the Tribunal stated that the Tribunal could not defer making a decision indefinitely and the Application could not be saved by a later nomination. The Tribunal considered itself bound to deal with the case expediently and efficiently based on the information before it.[14]
[14] CB 109.
The Tribunal also found that both the Second and Third Applicants could not satisfy the secondary criteria set out in cl 197.211 of the Regulations.[15]
[15] CB 109.
The Tribunal affirmed the decision under review as the First Applicant was not the subject of an approved or pending nomination Application and thus he did not meet cl 187.233.[16]
[16] CB 109.
PROCEEDINGS IN THIS COURT
The Application was filed in this Court on 17 March 2020, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 5 May 2021, Orders were made by Registrar Carlton of this Court for the Applicant to file: written submissions, any amended application with proper particulars and any additional evidence. For the Respondent to file: a copy of the court book, written submission and any additional evidence. That the First Applicant be appointed as litigation guardian for the Third Applicant.
On 17 March 2025, Orders were made by Registrar Cummings of this Court for the First Respondent’s name to be amended to the Minister for Immigration and Multicultural Affairs. For the Second Respondent’s name to be amended to Administrative Review Tribunal. For the Applicant to file: written submissions, any amended application with proper particulars and any additional evidence. For the Respondent to file: a copy of the court book, written submission and any additional evidence.
This matter was heard on 1 May 2025 at the Hearing. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
The Applicant relied upon the following documents:
(a)The Application filed 17 March 2020; and
(b)The Affidavit of the Applicant sworn and filed 17 March 2020 (Applicant’s Affidavit).
The Minister relied upon:
(a)The Response, filed 7 April 2020;
(b)The Minister’s Outline of Submissions filed 14 April 2025;
(c)The List of Authorities filed 24 April 2025; and
(d)Affidavit of Service of Mary Baras-Miller on 24 April 2025.
Both parties relied on the Court Book.
The Application contains nine (9) grounds of review (Grounds of Review):
1.I Jagjit Singh am the main applicant of this application and Varinderjit Kaur, Jugraj Singh are the dependent applicants. (Ground 1).
2.I came to Australia as the holder of student visa. I completed my studies and getting sponsored from nominated employer. (Ground 2).
3.The Tribunal erred in misconstruing and interpreting clause cl.187.233. (Ground 3).
Particulars
a. The Tribunal erred by not assessing and considering the ability of second applicant to meet the primary criteria for the subclass 187 visa.
b. Tribunal erred in not considering whether the secondary applicant has made any claims against the primary criteria for the grant of subclass 187 visa pursuant to sch.2 of the regulation.
c. The tribunal failed to independently assessed whether the secondary applicants satisfies cl.187.233 individually.
That the decision of the tribunal is affected by the jurisdictional error.
The tribunal failed to accord to the applicants procedural fairness and natural justice in support of my application.
4.The nomination application was lodged and due to unknown reasons the employer of nomination application took his step back from the lodged application. This was a huge shock to me. (Ground 4).
5.I tried several times to contact my employer and also dropped several email from my end but he didn’t respond me back. Even he didn’t try to contact me or did not pick up my calls. (Ground 5).
6.Member didn’t pay any heed towards my separate visa application. He gave his direction on the basis of my nomination application, which was totally unbiased decision for me and no further investigation was done on this matter. (Ground 6).
7.Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact. (Ground 7).
8.The appellant’s application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again. (Ground 8).
9.Substantial justice was not provided and that’s the reason I want to apply in Federal Circuit Court of Australia. (Ground 9).
(Words in bold added, otherwise as written).
APPLICANT’S SUBMISISONS
The Applicant did not file any written submissions.
Oral submissions were made by the First and Second Applicants during the hearing, both on their own behalf, and on behalf of the Third Applicant, in respect of whom the First Applicant was appointed as litigation guardian by order made by Registrar Carlton on 17 July 2020.
RESPONDENT’S SUBMISSIONS
Grounds 1, 2, 4 and 5 of the Applicant’s grounds do not allege error in the Tribunal’s decision. The Minister instead has responded to the remaining grounds, which are as follows:
Ground 3
The Applicants applied for the Visas in connection. The Second and Third Applicant’s Visas were entirely dependent on whether the First Applicant met the primary criteria in cl 187.233. The Second Applicant did not claim to meet the primary criteria and could not do so.
The Minister submits that the allegation of Ground 3 of a denial of procedural fairness is unparticularised. Where the non-satisfaction of cl 187.233 arising from his employer’s withdrawal of the nomination application, was the same as the issue arising for the Tribunal’s consideration on review, the Applicants were well-placed to address the Tribunal on the issue at the hearing; and the Tribunal was not required to take any additional steps to put them on notice of the issue it had to determine.
The Minister submits that Ground 3 is not made out.
Ground 6
The Minister submits that cl 187.233 required the Tribunal to consider whether the First Applicant was the subject of an approved nomination. It is a mandatory requirement, and the Tribunal has no discretion to waive the Application of the First Applicant. Where the First Applicant did not meet the requirement, the Tribunal was obliged to affirm the refusal decision.
Ground 7
Ground 7 alleges that the Tribunal erred in failing to give the Applicant’s ‘extra time’.
The Minister submits that the Tribunal was correct to find that the Visa Application could only be granted if the nomination specified in that Application was approved.
The Tribunal observed that that it could not defer making a decision indefinitely, and that the Visa Application could not be approved on the basis of the First Applicant obtaining a new nomination, such that it refused his request for more time.
Ground 8
Ground 8 states that the Applicants have an ‘arguable case’; the Minister submits that these unparticularised assertions are incapable of establishing jurisdiction error in the Tribunal’s decision.
Ground 9
To the extent Ground 9 is to be understood as alleging a denial of procedural fairness, the allegation must fail as per the reasons set out above in Ground 3.
The Minister submits that the Application should be dismissed with costs.
CONSIDERATION
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[17]
[17] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The court neither consider the merits of the decision nor remakes it.[18]
[18] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[19] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[20] Different kinds of error may overlap.[21] The categories are not closed.[22] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[23]
[19] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[20] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[21] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [82].
[22] LPDT at [3].
[23] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 at [82].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[24] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[25] It has been described as an “undemanding” standard.[26]
[24] LPDT at [7].
[25] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[26] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Regional Sponsored Migration Scheme Visas
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) has been satisfied, and to refuse to grant the visa, if not satisfied.
The criteria that the Applicant was required to satisfy for the grant of a Regional Employer Nomination Visa (Subclass 187) are set out in cl 187.221 to 187.611 in Schedule 2 of the Regulations.
Clause 187.233 provided (at the time of the hearing before the Tribunal):
1.The position to which the application relates is the position:
a.Nominated in an application for approval that:
i.identifies the applicant in relation to the position; and
ii.is made in relation to a visa in a Direct Entry stream; and
iii.seeks to meet the requirements of subregulation 5.19(12); and
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.
2.The person who will employ the applicant is the person who made the nomination.
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.
The dispositive issue in relation to the Tribunal’s Decision was whether the Tribunal was satisfied in relation to the employer nomination application criterion in cl 187.233 in circumstances where the employer had withdrawn its nomination application.
Grounds 1, 2, 4 and 5
Grounds 1, 2, 4 and 5 contain matters of factual narrative without identifying any alleged jurisdictional error in the Tribunal’s Decision.
I am not satisfied that the Tribunal made a jurisdictional error by reference those grounds.
Ground 3
Ground 3 is that:
3.The Tribunal erred in misconstruing and interpreting clause cl.187.233. (Ground 3).
Particulars
a.The Tribunal erred by not assessing and considering the ability of second applicant to meet the primary criteria for the subclass 187 visa.
b.Tribunal erred in not considering whether the secondary applicant has made any claims against the primary criteria for the grant of subclass 187 visa pursuant to sch.2 of the regulation.
c.The tribunal failed to independently assessed whether the secondary applicants satisfies cl.187.233 individually.
That the decision of the tribunal is affected by the jurisdictional error.
The tribunal failed to accord to the applicants procedural fairness and natural justice in support of my application.
I am not satisfied that the matters alleged in Ground 3 demonstrate that the Tribunal erred by “misconstruing and interpreting” cl 187.23. The Tribunal was not required to assess and consider the ability of the other applicants, including the Second Applicant, to meet the primary criterion for a Subclass 187 visa, in circumstances where none of those persons was identified in the nomination application connected to the Visa application. The Tribunal otherwise correctly interpreted and applied cl 187.233 (At [5], [8]-[10]).
In oral submissions contended that the Tribunal failed to consider circumstances in which the employer’s nomination application was withdrawn. However, I can discern no such requirement in the provisions of cl 187. I do not consider that the Tribunal erred by failing to consider the circumstances of withdrawal. What was relevant was the fact of withdrawal and the absence of a subsisting and valid nominating employer application. Similarly, the Applicants’ contention that they did not find out about the withdrawal of the employer nomination application for around one year cannot overcome the fact of that withdrawal.
Ground 3 also includes the unparticularised[27] assertion that the Tribunal failed to accord “procedural fairness and natural justice” to the Applicants.
[27] Compare DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [4].
The requirements of natural justice in relation to the Applicants’ hearing before the Tribunal were codified by Div 5 of Part 5 of the Migration Act in relation to the matters dealt with in that Division.
Section 357A of the Migration Act provided (at the date of the Tribunal’s Decision):
1.This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
2.Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
3.In apply this Division, the Tribunal must act in a way that is fair and just.
Section 360 of the Migration Act provided (at the date of the Tribunal’s Decision):
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:
a.the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
b.the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
c.subsection 359C(1) or (2) applies to the applicant.
3.If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
I am not satisfied that the Applicants were denied procedural fairness in the hearing before the Tribunal:
(a)The Applicants were invited to appear before the Tribunal to give evidence and present arguments in accordance with s 360(1) of the Migration Act.
(b)The Applicants appeared before the Tribunal with the assistance of a Punjabi interpreter and gave evidence and presented arguments.
(c)I also note that the Applicants were notified of the withdrawal by the employer of the nomination application (at [6]).
I am not satisfied that the Tribunal made a jurisdictional error by reference to Ground 3.
Ground 6
Ground 6 is that:
6.Member didn’t pay any heed towards my separate visa application. He gave his direction on the basis of my nomination application, which was totally unbiased decision for me and no further investigation was done on this matter. (Ground 6).
I am not satisfied that the matters alleged in Ground 6 demonstrate that the Tribunal erred by failing to “pay any heed towards my separate visa application”. It is unclear what was intended to be referred to by the First Applicant’s “separate visa application”. The Application the subject of the decision by the Delegate and the Tribunal was the First Applicant’s Application for a Visa (Subclass 187), and not some other application. The Tribunal noted that the Applicants had requested additional time in order to secure a new employer (at [7]), but that the application was not the subject of an approved or pending nomination application (at [8]). In those circumstances, the Tribunal was not, and could not have been,[28] satisfied of the matters set out in clause 187.233. No jurisdictional error is demonstrated.
[28] Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 at [81] – [90].
I am not satisfied that the Tribunal made a jurisdictional error by reference to Ground 6.
Ground 7
Ground 7 is that:
7.Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact. (Ground 7).
The Tribunal noted that the Applicants had sought “additional time in order to secure a new employer” but refused that request because it could not defer the decision indefinitely, and because “this application cannot be saved by a later nomination application” (at [7]).
Section 363(1)(b) of the Migration Act (at the time of the hearing before the Tribunal) provided that for the purpose of the review of a decision, the Tribunal may “adjourn the review from time to time”. Given that the power to adjourn was a discretionary one, there was an obligation on the Tribunal to exercise that power reasonably.[29]
[29] Li per Hayne, Kiefel and Bell JJ at [63].
In Li, French CJ stated:
76.As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
(Footnotes omitted)
I am not satisfied that the Tribunal erred by failing to give the Applicants “extra time”, presumably to procure another employer nomination. In particular, the decision not to adjourn was not one “which lacks an evident and intelligible justification” and hence was not unreasonable having regard to the following:
(a)On 24 November 2016, the Application for a Visa (Subclass 187) was filed.
(b)On 30 November 2018, the Department of Home Affairs sent a letter[30] to the First Applicant advising as follows in a letter regarding invitation to comment on information for a Regional Employer Nomination (subclass 187) visa Nomination withdrawal:
The nomination submitted to the department by Far Qld Pty Ltd listing you as their Nominee has been withdrawn. This means that your visa application cannot be approved.
(c)On 4 January 2019, the decision of the Delegate of the Minister was made.
(d)On 6 February 2020, the Applicants were invited to appear before the Tribunal on 28 February 2020.
(e)On 27 April 2020, the hearing of the Tribunal took place. At that hearing, the Applicants sought additional time (i.e. an adjournment).
(f)As the Tribunal found it “could not defer the decision indefinitely” and refused the Applicants’ application for additional time.
(g)The withdrawal of the nomination by the employer meant that the Applicants could not satisfy the employer nomination application criterion in 187.233, noting that the nomination and application for a visa is a “one off” process.[31]
[30] CB 65.
[31] See below at [80].
I am not satisfied that the Tribunal made a jurisdictional error by reference to Ground 7.
Ground 8
Ground 8 is that:
8.The appellant’s application clearly raises an arguable case and the decision of the tribunal is short and void and must be overlooked again. (Ground 8).
I am not satisfied that jurisdictional error is demonstrated by the matters set out in Ground 8. Given that this is a final hearing, the question for the court is not whether the Applicants had raised an arguable case, but whether there was a jurisdictional error. The Tribunal’s Decision appropriately dealt with the issues of the case, including the dispositive issue of whether there was a valid and subsisting employer nomination application.
I am not satisfied that the Tribunal made a jurisdictional error by reference to Ground 8.
Ground 9
Ground 9 is that:
9.Substantial justice was not provided and that’s the reason I want to apply in Federal Circuit Court of Australia. (Ground 9).
The allegation that “substantial justice was not provided” is unparticularised and appears to be a summation of Grounds 3 and 6 to 8, which I have dealt with above. For the reasons set out above, I do not consider that there is merit to Grounds 3, 6 and 8.
I am not satisfied that the Tribunal made a jurisdictional error by reference to Ground 9.
Materiality/Futility
The Minister contends is that in circumstances where the employer nomination application was withdrawn by the employer, there is no prospect of the nomination ever being approved, and no prospect of the First Applicant ever satisfying the criteria for the grant of the Visa. The Minister contends that the court should refuse relief in the exercise of its discretion on the basis that remittal to the Tribunal would be futile.
In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Gaudron and Gummow JJ held (at [58]) that the court may refuse relief if, irrespective of the individual merits, the decision-maker was bound by the governing statute to refuse the application.
In Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267, Mortimer J (as the Chief Justice of the Federal Court was then) (with whom Jago and Bromberg JJ, agreed) considered a contention that an appeal from a decision dismissing an application for judicial review of a decision not to grant a Subclass 187 Visa was futile, because the employer’s nomination had been refused by the Minister. While it was unnecessary for her to decide, Mortimer J concluded that even if error had been established, remitter to the Tribunal would have been futile:
82.…The contention pressed was that, on any remitter to the Tribunal, Harrico could submit another nomination in respect of the same position and in respect of the appellant while the matter remained before the Tribunal. I do not accept that submission. The refusal of Harrico’s nomination by the Minister, and the absence of any merits review decision overturning it, is fatal to the appellant’s current RN visa application.
…
88.…In my opinion the criterion [in cl 187.233(i)] imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
89.The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]-[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
90.The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
These comments have direct application to the present case. The application for a Regional Sponsored Migration Scheme Visa, with the requirement of a valid and subsisting employer nomination, is a “one off” process that cannot be cured in the event that the employer’s nomination is refused or, as here, withdrawn.
In the premises, had I found error on one of the grounds set out in the Applicants’ Application, I would have refused relief in my discretion because of futility, alternatively because such an error could not have been material to the decision-maker’s decision.[32]
[32] LPDT at [7].
Other Matters
The Applicant was self-represented in the hearing before me.
I have been mindful of the guidance set out in decisions like SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 concerning the Court’s obligation to act in a procedurally fair manner when dealing with self-represented litigants; in particular, the requirement to put an unrepresented litigant in a position to make an effective choice about how to conduct his or her case.
Having noted these matters, I have not otherwise identified any arguable jurisdictional error in the Tribunal’s Decision that I have not specifically addressed above.[33]
[33] Noting the comments of Mortimer J (as the Chief Justice was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [113].
CONCLUSION
As the Applicants have not established that the Tribunal made a jurisdictional error, the Application for review must be dismissed.
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minster sought costs in the sum of $3,800 being less than the scale amount.[34] I am satisfied that costs ought to follow the event,[35] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[36]
[34] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.
[35] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[36] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 6 May 2025
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