Syed v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2025] FedCFamC2G 1579
•29 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Syed v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2025] FedCFamC2G 1579
File number(s): SYG 999 of 2023 Judgment of: JUDGE CAMERON Date of judgment: 29 September 2025 Catchwords: MIGRATION – Regional Sponsored Migration Scheme (subclass 187) visa – no approved nomination – review of Administrative Appeals Tribunal (“Tribunal”) decision – no reasonable prospects of success.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that its discretion miscarried when it denied the applicant’s request for an adjournment.
Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Migration Act 1958 ss. 359A, 474
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: General Number of paragraphs: 14 Date of hearing: 21 October 2024 Place: Sydney Counsel for the Applicants: The first applicant appeared in person Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 999 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: IMRAN PASHA QADRI SYED
First Applicant
FATIMA MAHAPARA
Second Applicant
IMBRAHIIM PASHA QADRI SYED (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
29 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The registrar’s decision made on 23 July 2024 be confirmed.
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 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The first applicant (Applicant) is a citizen of India who applied for a Regional Sponsored Migration Scheme (subclass 187) visa in the Direct Entry stream on 16 February 2018. The second applicant is the Applicant’s wife, and the third, fourth and fifth applicants are his minor children and all were included in Applicant’s visa application as members of his family unit. Their application was refused by a delegate (Delegate) of the first respondent (Minister) on 6 August 2019 because the nomination lodged by the Applicant’s proposed sponsor had not been approved by the Minister. The applicants then applied to the second respondent (Tribunal) for a review of that departmental decision. They were unsuccessful before the Tribunal and applied to this Court for judicial review of the Tribunal’s decision.
On 23 July 2024 a registrar summarily dismissed the application on the basis that it lacked reasonable prospects of success. On 28 July 2024 the applicants applied for a review of the registrar’s decision. It is that application that is presently before the Court. At the time the review was held, Rule 21.04(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) provided that a review of a registrar's decision was to proceed as a hearing de novo.
This is a judicial review proceeding and the Court cannot rehear the applicants’ application for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the registrar’s decision of 23 July 2024 will be confirmed.
BACKGROUND
Tribunal’s decision
On 4 April 2023, the Tribunal invited the applicants to comment on or respond to information pursuant to s. 359A of the Act. The invitation explained that the information was relevant because it indicated that a position to which the application related was not approved and without an approved nomination, the applicants could not satisfy cl 187.233 of sch 2 to the Regulations. The applicants were invited to provide a response by 18 April 2023.
On 14 April 2023, the Applicant unsuccessfully sought an adjournment of the Tribunal hearing that had been listed for 15 May 2023, saying that he was “working through a few options to continue to stay in the country by obtaining the necessary legal rights” and considering “some options to apply for sub-class 482 visa”. The Applicant and the second applicant attended the Tribunal hearing on the date originally set. On 5 June 2023, the Tribunal affirmed the Delegate’s decision not to grant the applicants the visas they sought. In doing so, it identified the determinative issue to be whether the Applicant satisfied cl 187.233 of Schedule 2 to the Regulations, which required him to be the subject of an approved nomination.
The Tribunal found that as the nomination concerning the Applicant had not been approved, he did not satisfy cl 187.233 of sch 2 to the Regulations, which was an essential criterion for the grant of the visa and so the Delegate’s decision had to be affirmed.
LEGISLATION
At the time the visa application was made, the Migration Regulations 1994 (Cth) (Regulations) relevantly provided:
187.233
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.
That clause was subsequently amended but the quoted passages still apply to the application the subject of this proceeding: items 158 and 178 of sch 1 to the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) and cl 6705(3) of the Regulations.
PROCEEDING IN THIS COURT
The grounds of the application commencing this proceeding were pleaded as follows:
1. Minister of Immigration, Citizenship and Multicultural Affairs and Administrative Appeals Tribunal have had made jurisdictional errors. After lodging my application for Regional Employer Nomination (subclass 187) on 16 February 2018, my Employer Zsigmond KELEVITZ going through some financial problems and so not able to provide required documents. I have requested for time extension to submit documents in a while but Immigration department neither give me a chance to prove it (nomination) nor fair with me for my visa application and neglected the sections of Migration Act 1958 regarding such matter.
2. Administrative Appeals Tribunal also made same jurisdictional error by not considering current Migration Act 1958 about Genuine approach to provide nomination and visa documents rather they give more weight to immigration department officer's claim which was without a fair go for a chance to submit further evidence. Tribunal even did not look into the Natural Justice issues as it's arises from the current Migration Act 1958.
The first ground of the application, although it implicitly refers to the actions of the Delegate, appears to be a complaint that the Tribunal did not grant the applicants the adjournment of the Tribunal hearing that they sought on 14 April 2023. In its decision record the Tribunal explained its reasons for declining the request for an adjournment:
15.In relation to the applicant’s request that the Tribunal delay making a decision so that the applicant can consider his options to apply for a sub class 482 visa, the Tribunal is mindful that requests for deferrals must be considered carefully to determine whether they are reasonable or not: Minister for Immigration and Citizenship v Li [2013] HCA 18. The Tribunal carefully considered the applicant’s request but declined to defer its decision in this matter to provide the applicant time to consider his options and apply for a subclass 482 visa. Furthermore, the Tribunal considers that the placement of an applicant’s review on hold to provide them opportunity to consider their options and apply for another visa, does not contribute towards achieving the objectives of the functions of the Tribunal as per section 2A of the Administrative Appeals Tribunal Act. (reference omitted)
It was not suggested that those reasons were affected by error.
As to the second ground of the application, it does not raise any relevant error and fails to come to terms with the basis of the refusal decision, namely that at the time the visa application was lodged, no valid nomination was in place. Absent such a nomination, the relevant criterion for the grant of the visa sought could not be satisfied and so the Tribunal could do no other but affirm the Delegate’s decision.
The applicants also made oral arguments based on the merits of their circumstances generally. Those matters did not identify any error in the Tribunal’s approach or decision.
CONCLUSION
The application for judicial review lacks reasonable prospects of success.
Consequently, the registrar’s decision made on 23 July 2024 will be confirmed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 29 September 2025
SCHEDULE OF PARTIES
SYG 999 of 2023 Applicants
Fourth Applicant:
HAZMA PASHA QADRI SYED
Fifth Applicant:
ZAYD PASHA QADRI SYED
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