Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 880
•11 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 880
File number: MLG 984 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 11 June 2025 Catchwords: MIGRATION – Employer nomination (Subclass 186) visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider if the first applicant met the requirements set out in cl 186.242 in Schedule 2 of the Migration Regulations 1994 (Cth) – whether the applicants ought to be allowed to mount a collateral challenge to the nomination decision – whether the Tribunal was required to invite the applicants to appear at a hearing before it – whether the Tribunal afforded the applicants procedural fairness – remittal futile in any event – Ministerial intervention – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16
Migration Act 1958 (Cth), ss 351, 357A, 359A, 359C, 360, 363A, 476, 479 & 486C and Division 5 of Part 5
Migration Regulations 1994 (Cth), cll 186.223, 186.311, 186.242 & 187.311 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Jacobs v OneSteel Manufacturing Pty Ltd [2006] SASC 32
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Ousley v The Queen [1997] HCA 49
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 390
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2017] FCAFC 105
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 124
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 15 April 2025 Place: Perth Applicants: First applicant appeared in person Counsel for the First Respondent: Mr J Mintz Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 984 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TARANJEET SINGH
First Applicant
NEETU KAUR
Second Applicant
TAAZVEER SINGH
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
11 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
2.The application be 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 KENDALL:
BACKGROUND
Recent Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 7 March 2019 and thus predates those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
At the time the application for judicial review was filed (being on 4 April 2019), the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, the Court made an order (administratively, on 30 December 2024) substituting the ART as the second respondent in this proceeding.
The applicants’ migration history
The applicants are citizens of India (Court Book (“CB”) 2-6 & 21-24). The first and second applicants are husband and wife respectively. The third applicant is their minor child (a son) (CB 2-5).
On 10 November 2016, the first applicant applied for an Employer Nomination (Class EN) (Subclass 186) visa (the “visa”) in the Temporary Residence Transition stream (CB 1-14). His wife and son were included in that visa application as members of the first applicant’s family unit (CB 3-5). In that visa application, the first applicant nominated the position of “Motor Mechanic (General)” and identified Zoom Mechanics Pty Ltd (the “sponsor”) as his employer (CB 8-9). The first applicant provided various supporting documents (related to himself and his family) with that visa application (CB 15-24).
On 10 November 2016, the then Department of Immigration and Border Protection (the “Department”) acknowledged receipt of the visa application (CB 25-29).
On 27 April 2017, the nomination application made by the sponsor was refused by a delegate of the first respondent (the “Minister”) (CB 43).
Later that same day (on 27 Aprill 2017), the Department invited the first applicant to comment on information relating to his visa application (CB 30-34). Relevantly, the Department advised as follows (CB 31-32):
Nomination refused
The nomination submitted to the department by ZOOM MECHANICS PTY LTD listing you as their Nominee has been refused. Unfortunately this means that your visa application cannot be approved. There are two options you can now take in relation to this decision:
1. Withdrawing your application
As there is no possibility of your application being approved you may wish to withdraw your application, if so you must advise the department in writing. By withdrawing your application you give up any rights to apply for a merits review at the Administrative Appeals Tribunal. A request for a refund can be submitted but will only be granted in very limited circumstances.
2. Refusal of application
If you do not respond to this letter within 28 days and the application has not been withdrawn then the application will be refused. If your application is refused you are entitled to apply for a merits review of this decision with the Administrative Appeals Tribunal. A request for a refund will not be approved.
…
Timeframe for response
You must respond to this invitation to comment within 28 days after you are taken to have received this letter. You should provide your response in writing.
You can send your response to me using the contact details provided below.
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
No response was received from or on behalf of the applicants.
On 29 May 2017, the Minister’s delegate refused to grant the applicants the visas (CB 42-45). The delegate was not satisfied that the first applicant met cl 186.223(2) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) because he was not the subject of an approved nomination (CB 43). As such, it was also noted that the second and third applicants failed to satisfy cl 186.311 in Schedule 2 of the Regulations (the Court notes that the delegate in fact referenced cl 187.311 in Schedule 2 of the Regulations in relation to the second and third applicants, however, the Court considers that this is no more than a typographical error and the delegate was actually intending to reference cl 186.311 in Schedule 2 of the Regulations) (CB 44).
On 12 June 2017, the applicants sought review of the delegate’s decision by the Tribunal (CB 46-48). The applicants provided the Tribunal with copies of the delegate’s decision and associated notification letter, together with a copy of the Tribunal’s acknowledgement letter confirming receipt of the sponsor’s review application (CB 49-66).
On 13 June 2017, the Tribunal acknowledged receipt of the applicants’ review application (CB 67-75).
On 20 February 2019, the Tribunal invited the applicants (pursuant to s 359A of the Act) to comment on or respond to information in relation to their review application (the “Tribunal’s invitation letter”) (CB 76-78). The Tribunal’s invitation letter relevantly provided as follows (CB 77-78):
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
•The application for approval of the nominated position made by Zoom Mechanics Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator's application for the nominated position has not been approved.
This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 6 March 2019. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 6 March 2019, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 6 March 2019 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
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.
No response was provided by or on behalf of the applicants (CB 85).
On 7 March 2019, the Tribunal affirmed the delegate’s decisions refusing to grant the applicants the visas (CB 84-88). The Tribunal ultimately determined that, because the first applicant was not the subject of an approved nomination, he could not be granted the visa. That, in turn, meant that his wife and son (the second and third applicants) could not be granted visas (CB 86-87).
On 4 April 2019, the applicants applied to the then Federal Circuit Court of Australia (the “FCCA”) for judicial review of the Tribunal’s decision (CB 89-93). The applicants also filed an affidavit (affirmed by the first applicant) in support of that application (CB 94-96). The affidavit annexed a copy of the Tribunal’s decision (CB 97-101).
THE TRIBUNAL’S DECISION
The application before this Court is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is five pages long and spans 22 paragraphs (CB 84-88). The final page contains extracts of relevant legislative provisions (CB 88).
The Tribunal began by explaining that the applicants had applied for the visas on 10 November 2016 and that a delegate of the Minister had refused to grant the applicants the visas on 29 May 2017 because there was no approved nomination (noting that the application lodged by the sponsor had been refused). The Tribunal explained that the Subclass 186 visa contained multiple visa streams and that the first applicant was seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Motor Mechanic (General) (at [1]-[5]).
The Tribunal noted that it had invited the applicants (pursuant to s 359A of the Act) to comment on or respond to the fact that the sponsor’s nomination application had been refused and the fact that the Tribunal had affirmed the delegate’s decision in that regard. The Tribunal’s invitation letter explained that the information was relevant because a requirement for the grant of the visa was that the position specified in the visa application be the subject of an approved nomination. The Tribunal’s invitation letter also notified the applicants that any response was required to be received by 6 March 2019 or the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal. The Tribunal noted, however, that no response was received from the applicants (nor did they request any extension of time within which to respond to the Tribunal’s invitation letter) (at [6]-[10]).
The Tribunal determined that, due to the operation of ss 359A, 359C(2), and 360(3) of the Act, the applicants had lost their entitlement to appear at a Tribunal hearing and explained that the Tribunal did not have the power to permit any party to do something they were not entitled to do (at [12]-[13]).
The Tribunal identified that the issue before it was whether there was an approved nomination, outlining that the requirements under cl 186.223 in Schedule 2 of the Regulations required that the nomination be approved (and not subsequently withdrawn). The Tribunal explained that the sponsor’s nomination application was refused by a delegate and an application for review was lodged with the Tribunal, with the delegate’s decision regarding the nomination ultimately being affirmed. On that basis, the Tribunal determined that cl 186.223 in Schedule 2 of the Regulations had not been met. As a result, the Tribunal also found that the second and third applicants had not met cl 186.311 in Schedule 2 of the Regulations (at [15]-[21]).
The Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (at [22]).
APPLICATION TO THIS COURT
The application for judicial review filed in the then FCCA by the applicants on 4 April 2019 contained five “grounds of review”, as follows (without alteration) (CB 92):
1.The 186 Nomination was refused by the DIBP as subregulation 5.19 (4) was not met by the business Zoom Mechanics Pty Ltd.
2.There was an employment contract signed between myself Taranjeet Singh and Zoom Mechanics Pty Ltd for annual salary of AUD 59130 as a motor mechanic which was for a period of 24 months and ongoing.
3.The terms and conditions of the employment of the position of the motor mechanic were no less favourable than what were given to an Australian permanent resident or a citizen employed by the business Zoom Mechanics Pty Ltd as a motor mechanic working at the same location and same work with similar academic qualifications and work experience.
4.I had already worked with the same employer as a motor mechanic and my 457 visa was approved and there was an employment contract in place at the time of the application of 186 nomination was lodged by the business with the DIBP.
5.The nomination application was lodged on 8 November 2016 and the decision to refuse the application was affirmed on 27 April 2017 by the DIBP without asking any documentation. The normal decision time of an 186 Nomination application was more than 12 months but the business was treated unfairly as the decision was made within 6 months without any communication and the DIBP overlooked Natural Justice.
The application was accompanied by an affidavit (affirmed by the first applicant) in support (CB 94-96). The affidavit annexed a copy of the Tribunal’s decision (CB 97-101) and largely repeated information contained in the grounds of review (outlined above). Relevantly, the first applicant’s affidavit stated as follows (CB 95):
1.There was an signed employment contract in place at the time of nomination refusal by the DIBP and the conditions of employment were not less favourable than what were provided to and Aus Citizen.
2.There was no communication after the lodging the 186 Nomination application and the decision was taken before the normal processing time of a 186 Nomination application was over and process of Natural Justice exists in my case and the DIBP and the AAT have made a judicial error of not satisfying subsection 5.19(4).
On 30 June 2021, procedural orders were made by Registrar van der Westhuizen of the then FCCA giving the applicants an opportunity to file an amended application, a supplementary court book and written submissions. Unfortunately, no additional materials were provided by or on behalf of the applicants.
The materials before this Court include the application for judicial review and supporting affidavit (affirmed by the first applicant on 4 April 2019 and taken as read an in evidence at the hearing of this matter) filed by the applicants on 4 April 2019, a CB numbering 117 pages (marked as Exhibit 1 at the hearing) and written submissions filed on behalf of the Minister on 1 April 2025.
The first applicant appeared before this Court on 15 April 2025 without legal representation. He appeared by video link and, whilst his wife and child were visible on screen with him (in the view of the Court), the first applicant confirmed to the Court that he would speak on behalf of his family and did so. Mr Jared Mintz from Clayton Utz (solicitors for the Minister) also appeared by video link at the hearing.
The Court confirmed with the first applicant that he had received copies of the CB and the Minister’s written submissions.
Noting that the first applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant told the Court that, when his visa was refused, the sponsoring employer told him to stay with the company but it was “blacklisted” because it had sponsored more people than it should have. He explained that the sponsor had promised him sponsorship and promised to continue to pay him but did not do so. He further explained that he had been “let down” and “left in the middle” without any support. The first applicant also told the Court that he had been in Australia for 17 years with his family and, at his age, he is not able to lodge any other visa applications. He stressed that the third applicant (his son) was in year six of school and he cannot see any future for himself now. The first applicant also told the Court that he had been “exploited” by his sponsoring employer and, while he had worked for another employer for a year, he lost that opportunity when the COVID pandemic hit.
CONSIDERATION
Unfortunately, the applicants’ grounds of review were not particularised, no written submissions were filed by or on behalf of the applicants and the first applicant’s oral submissions before this Court did not address the issue of jurisdictional error. This is not a criticism. The applicants in this case were not legally represented and the Court recognises that legal proceedings can be intimidating and stressful.
In the circumstances, the Court will interpret the applicants’ concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and will itself review the Tribunal’s decision for any possible jurisdictional error.
Grounds of review
Grounds one, two and four
As outlined above, grounds one, two and four relevantly provided as follows:
1.The 186 Nomination was refused by the DIBP as subregulation 5.19 (4) was not met by the business Zoom Mechanics Pty Ltd.
2.There was an employment contract signed between myself Taranjeet Singh and Zoom Mechanics Pty Ltd for annual salary of AUD 59130 as a motor mechanic which was for a period of 24 months and ongoing.
…
4.I had already worked with the same employer as a motor mechanic and my 457 visa was approved and there was an employment contract in place at the time of the application of 186 nomination was lodged by the business with the DIBP.
As can be seen above, grounds one, two and four simply outlined background and factual information in relation to the first applicant’s employment history and his visa application. The grounds do not point to any issue of jurisdictional error of the sort that this Court can address.
No error arises in this regard.
Ground three
Ground three stated:
3.The terms and conditions of the employment of the position of the motor mechanic were no less favourable than what were given to an Australian permanent resident or a citizen employed by the business Zoom Mechanics Pty Ltd as a motor mechanic working at the same location and same work with similar academic qualifications and work experience.
By Ground three, the Court understands the applicants to have referenced the requirements set out in cl 186.242 in Schedule 2 of the Regulations. At the time of the Tribunal’s decision, that clause relevantly provided as follows (emphasis added):
186.242
(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 Labour Agreement stream; and
(b) identified in the application for the grant of the visa.
(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 employer who made the nomination or a person associated with the employer; or
(b)it is reasonable to disregard any adverse information known to Immigration about the employer who made the nomination or a person associated with the employer.
(5) The position is still available to the applicant.
(6)The terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(a) are provided; or
(b) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the workplace to which the application relates at the same location.
As can be seen from the extract of the legislation above, cl 186.242(6) in Schedule 2 of the Regulations required that the terms and conditions of an applicant’s employment be “no less favourable” than those provided to an Australian citizen or permanent resident performing the same work in the same workplace.
The Court notes, however, that cl 186.242 in Schedule 2 of the Regulations related only to a Subclass 186 visa applied for in the Labour Agreement stream: cl 186.242(1)(a)(ii) in Schedule 2 of the Regulations.
As outlined above, the first applicant here applied for a Subclass 186 visa in the Temporary Residence Transition stream. In those circumstances, the first applicant was not required to meet cl 186.242(6) in Schedule 2 of the Regulations in order to be granted the visa and the Tribunal made no findings in this regard. Nor was it required to do so.
No jurisdictional error arises in relation to ground three.
Ground five
Ground five provided as follows:
5.The nomination application was lodged on 8 November 2016 and the decision to refuse the application was affirmed on 27 April 2017 by the DIBP without asking any documentation. The normal decision time of an 186 Nomination application was more than 12 months but the business was treated unfairly as the decision was made within 6 months without any communication and the DIBP overlooked Natural Justice.
To the extent that ground five stated that the “business was treated unfairly” because a decision was made by the Department too quickly, the Court notes that it does not have jurisdiction to review the delegate’s decision: ss 476(2) and (4) of the Act. That decision is a primary decision (within the meaning of s 476(2)(a) of the Act). As such, it is not subject to judicial review by this Court: ss 476(2) and (4) of the Act.
The Court also does not have any application before it in relation to the refusal of the nomination application and there is no evidence before the Court to suggest that the sponsor made any such judicial review application challenging the nomination decision. As correctly submitted by the Minister (at [12] in written submissions filed in this Court on 1 April 2025), any suggestion that the applicants are seeking to mount a collateral challenge to the Tribunal’s decision in relation to the nomination decision should not be permitted.
In this regard, the Court is guided by comments made by the Full Court of the Federal Court in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 (“Singh 2023”) (citing Jacobs v OneSteel Manufacturing Pty Ltd [2006] SASC 32 and Ousley v The Queen [1997] HCA 49), as follows:
125.Ousley was considered by Besanko J in Jacobs v OneSteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568. His Honour was considering the question of whether the South Australian Workers Compensation Tribunal had jurisdiction to consider a collateral challenge to the validity of some of its own rules and if valid, whether those rules were inconsistent with terms of regulations made pursuant to the relevant legislation.
126. At [93] his Honour observed:
I do not think there is any doubt that in some cases there are good reasons to allow a collateral challenge and in other cases there are good reasons to deny it. On occasions there may be cases in which a statutory provision will provide a clear answer to the question whether a collateral challenge is permitted in a particular case. Other possible factors which might be relevant in deciding that question have been discussed in the authorities and in the academic literature. I refer to two articles for a helpful discussion of the relevant factors: M Aronson, “Criteria for Restricting Collateral Challenge” (1998) 9 Public Law Review 237 and Professor Enid Campbell, “Collateral Challenge of the Validity of Governmental Action” (1998) 24 Monash University Law Review 272. The factors identified include the following:
1.Are the grounds of challenge likely to involve the adducing of substantial evidence?
2.If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?
3.In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?
4.Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?
5.Is the issue raised by the collateral challenge clearly answered by authority?
6.Are there other cases pending which raise the same issue?
7.(Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted?
127.When the factors set out by Besanko J in Jacobs, which are not exhaustive, are considered:
(a)All proper parties were not heard on the appeal (Factor 2). That is significant because in the event the appeal was allowed, there is no evidence that Harsinco still has a desire or capability to employ Mr Singh; and
(b)Sections 479 and 486C and the consequent lack of standing on the part of the appellants, is such that those statutory provisions provide a clear answer to the issue as to whether a collateral challenge should be allowed in this matter. Those sections prohibit a collateral challenge of the type sought to be advanced (Factors 3 and 4).
The findings made above (in Singh 2023) apply equally to this case. Relevantly:
(a)all of the parties were not heard in the judicial review application (as required by Factor 2). That is also significant in this case because the first applicant expressed concerns with the conduct of the sponsoring employer in this matter and claimed to have been exploited by the sponsor. It is also significant because there is no evidence before the Court to suggest that the sponsor still has any desire or capability to employ the first applicant; and
(b)as was the case in Singh 2023, ss 479 and 486C of the Act and the consequent lack of standing on the part of the applicants in this case provide a clear answer as to whether a collateral challenge should be allowed in this matter. Those sections of the Act prohibit a challenge to the nomination refusal decision by the applicants in this case (Factors 3 and 4).
On that basis, the Court does not consider that the applicants should be permitted to raise a collateral challenge to the nomination decision.
Insofar as the applicants suggested that the Tribunal acted unfairly by not allowing them to appear at hearing before it or that they were unable to properly present their case, the Court disagrees for the reasons that follow.
As explained by this Court in Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 390 (and other similar matters), the Tribunal was required (by s 360(1) of the Act as was in force at the time of the Tribunal’s decision) to invite an applicant to appear before it to give evidence and present arguments. However, there were some exceptions to this requirement, which were set out in ss 360(2) and (3) of the Act, as follows:
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing 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.
Relevant to this matter was s 360(2)(c) of the Act.
In this regard, s 359C(1) of the Act is of note. That section relevantly provided as follows:
(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.
As outlined above, on 20 February 2019 the Tribunal invited the applicants (pursuant to s 359A of the Act) to comment on or respond to information in relation to their review application (CB 76-78).
The Tribunal’s invitation letter relevantly provided as follows (CB 77-78):
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
•The application for approval of the nominated position made by Zoom Mechanics Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator's application for the nominated position has not been approved.
This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 6 March 2019. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 6 March 2019, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 6 March 2019 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
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.
Critically for the applicants in this matter, the Tribunal’s invitation letter required that a response be provided to the Tribunal by no later than 6 March 2019. Further, any request for an extension of time within which to respond to the invitation letter also had to be received by 6 March 2019.
The applicants did not provide any response to that invitation. Nor did they seek any extension of time within which to do so (CB 85).
The effect of the applicants’ failure to respond to the Tribunal’s invitation letter or to request an extension by 6 March 2019 was that ss 359C, 360(3) and 363A of the Act were enlivened. This meant that the applicants lost any right or entitlement to appear at a hearing before the Tribunal. That is, the Tribunal had no discretion (nor any power) to permit the applicants to attend a hearing. The Tribunal was, in effect, required to determine the application on the papers or materials before it.
No jurisdictional error arises in relation to the Tribunal not inviting the applicants to attend a hearing before it and proceeding to determine the matter on the materials before it.
The Court will also consider whether the Tribunal has otherwise afforded the applicants procedural fairness.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243 (and other similar matters), Division 5 of Part 5 of the Act (as was in force at the time of the Tribunal’s decision) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal was obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal did so in this matter and notes that:
(a)the Tribunal exercised its power under s 359A of the Act to invite the applicants to comment on or respond to information (CB 76-78). The applicants did not respond to that invitation (CB 85);
(b)the dispositive issue before the Tribunal (being whether the first applicant was the subject of an approved nomination as required by cl 186.223 in Schedule 2 of the Regulations) was the same as the issue before the delegate and which led to the refusal of the applicants’ visas. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and
(c)there is no evidence before this Court to suggest that the Tribunal was anything but impartial and objective: SZRUI.
The Court is satisfied that the Tribunal afforded the applicants procedural fairness in this matter.
No jurisdictional error arises in relation to ground five.
Futility
As discussed by this Court in Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 124 (“Thakur”) (and other similar matters involving either Subclass 187 or Subclass 186 visas), visas of this sort are, in effect, “tied” to the sponsor and the approval of that sponsor’s related nomination application. It is a pre-requisite that the sponsor’s nomination application be successful in order for an applicant to be successful with his or her visa application. If the nomination application is not successful, an applicant’s visa application is “doomed to fail”.
In relation to this matter, even if the Court found that there was jurisdictional error on the part of the Tribunal, it would be futile to remit the matter: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 (“Singh 2017”) at [88]-[90]. This is so because the Tribunal would, again, find that the first applicant does not meet cl 186.223 in Schedule 2 of the Regulations. Importantly, he is not the subject of a valid nomination. Further, there is no evidence before this Court to suggest that the sponsor has sought to challenge the nomination decision in this Court (after the Tribunal affirmed the decision refusing the nomination application made by the sponsor).
As per this Court’s reasoning in Thakur, the decision to refuse the nomination in relation to the first applicant thus remains a valid and effective decision which, on remittal, the first applicant cannot cure. He cannot, for example, find a new sponsor or be nominated for a different position. The application is a “once off” process tied to the sponsor’s nomination application which, here, has failed: Singh 2017 at [90]. This means that the applicants will, on any view, also fail if the matter is remitted to the Tribunal.
Accordingly, any decision by this Court to remit the matter to the Tribunal would be futile.
Ministerial intervention
The circumstances of this matter are most unfortunate.
The first applicant in this matter told the Court that he had been “exploited” by his sponsoring employer. He also told the Court that he had tried to find another sponsoring company and worked for a new employer for a year before the COVID pandemic ultimately ended that opportunity. The first applicant and his family have otherwise been in Australia for 17 years and have made a life for themselves in Australia and now face an uncertain future. The Court sympathises with the first applicant and the situation he and his family now find themselves facing.
Unfortunately, for the reasons set out above, the Court is not able to assist the applicants in relation to their judicial review application.
The Court does, however, consider that the applicants’ circumstances to be “compelling”.
The Court draws the applicants’ attention to the Minister’s discretionary powers pursuant to s 351(1) of the Act. Where, as is the case here, the Tribunal has affirmed a decision refusing the applicants the visas, and that decision has been upheld on review, the Minister has a statutory discretion to substitute a more favourable decision.
CONCLUSION
The application for judicial review and supporting affidavit (filed by the applicants in the then FCCA on 4 April 2019) have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise satisfied that no error arises and remittal of the matter would, in any event, be futile.
The application is, accordingly, dismissed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 11 June 2025
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