Wang v Minister for Immigration and Citizenship
[2025] FedCFamC2G 999
•2 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wang v Minister for Immigration and Citizenship [2025] FedCFamC2G 999
File number(s): SYG 1827 of 2023 Judgment of: JUDGE KAUR-BAINS Date of judgment: 2 July 2025 Catchwords: MIGRATION – judicial review of Administrative Appeals Tribunal’s decision refusing to grant the first applicant a Regional Employer Nomination (Permanent) (Class RN) visa on the basis that she did not meet cl 187.233(3) of Schedule 2 to the Migration Regulations1994 (Cth) – applicant was not the subject of an approved nomination – review of registrar’s decision ordering summary dismissal on the basis that the claim for relief had no reasonable prospect of success – application for review dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021 (Cth) rr 13.13, 13.13(a), 21.02(1) and 21.04(1)
Federal Court Rules 2011 (Cth) r 26.01
Migration Regulations1994 (Cth), regs 5.19 and 5.19(9)(d), cl 187.233(3) of Schedule 2
Cases cited: Allison v Murphy [2021] FCAFC 232
Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34
BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307
Hamod v New South Wales [2011] NSWCA 375
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392
Spencer v Commonwealth of Australia (2010) CLR 118; [2010] HCA 28
SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146
Division: General Federal Law Number of paragraphs: 36 Date of hearing: 19 June 2025 Place: Sydney First Applicant: In person Second Applicant: No appearance Third Applicant: No appearance Solicitor for the First Respondent: Mr J O’Connell of HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitted appearance save as to costs ORDERS
SYG 1827 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FENGYING WANG
First Applicant
FENG ZHAO
Second Applicant
YINAN ZHAO
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
2 JULY 2025
THE COURT ORDERS THAT:
1.The time to apply for review of Registrar Rohan’s decision dated 16 April 2025 is extended to 4 May 2025.
2.The application for review of Registrar Rohan’s decision is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Kaur-Bains
INTRODUCTION
On 16 April 2025, a Judicial Registrar of this Court (Registrar), in the exercise of delegated power dismissed the applicants’ application for judicial review pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021 (Cth) (Rules), on the basis that the claim for relief had no reasonable prospect of success (Registrar’s Decision). By an application filed on 3 May 2025, the applicants seek a review of the Registrar’s Decision for the reasons set out in the first applicant’s affidavit affirmed on 3 May 2025, where the first applicant contended that:
I was given the opportunity to make oral submissions at the hearing. However, I believe the court failed to give proper consideration to my arguments and supporting materials before summarily dismissing my case. I contend that this constituted a denial of procedural fairness.
Pursuant to r 21.02(1) of the Rules, an application for review of the Registrar’s Decision must be made within 7 days, but that time may be extended pursuant to r 21.02(2) of the Rules. The applicants were 10 days out of time in making the application for review of the Registrar’s Decision. The first applicant explained that she thought she had 28 days to apply for review. Given that explanation, the Minister agreed that time be extended, which extension was granted.
Pursuant to r 21.04(1) of the Rules, this Court’s review is by way of a hearing de novo. That is, for such hearings to be conducted afresh and not concerned with correcting error in the decision-making process of the Registrar. The validity of the exercise of delegated judicial power by a Registrar of this Court is dependent upon this principle and the right for parties to seek review of the exercise of delegated judicial authority: Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 (Allsop CJ, Markovic and Colvin JJ) at [2]; BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307 (Burley J) at [11]; Allison v Murphy [2021] FCAFC 232 at [11].
Accordingly, I considered afresh whether to grant summary judgment in this matter. For the reasons set out below, I find the applicants have no reasonable prospect of demonstrating jurisdictional error. This is because the first applicant cannot satisfy cl 187.233(3) of Schedule 2 to the Migration Regulations1994 (Cth) (Regulations), as she is not the subject of an approved nomination and the nomination decision made by the Tribunal is not subject to judicial review, and there is no evidence suggesting the sponsor employer intends to seek judicial review of the nomination decision. The first applicant told the Court that Pacific Vintners Pty Ltd (Pacific Vintners) had restructured and the job that she was originally sponsored for is no longer available, which further suggests that Pacific Vintners will not seek an extension of time in which to seek judicial review of the nomination decision.
BACKGROUND
On 14 November 2019, the first applicant applied for the Regional Employer Nomination (Permanent) (Class RN) visa (visa) on her own behalf and that of her family, the second and third applicants. The second and third applicants only qualify for the visa if the first applicant so qualifies.
At the time of application, Class RN contained one subclass being subclass 187 (Regional Sponsored Migration Scheme). The first applicant was seeking the visa in the Direct Entry stream to work in the position of sales and marketing manager and identified her sponsoring employer as Pacific Vintners.
Nomination decision
On 13 November 2019, Pacific Vintners applied for approval of the nomination of the first applicant in the position of sales and marketing manager.
On 5 June 2020, the delegate of the Minister rejected Pacific Vintners’ application for approval of the nomination of a position under reg 5.19 of the Regulations, on the basis that the delegate was not satisfied there was a genuine need for the first applicant to be employed in the position.
Pacific Vintners sought review of the delegate’s decision to the Tribunal. The Tribunal invited Pacific Vintners to give oral evidence and present arguments at a hearing on 9 November 2023 (Supplementary Court Book (SCB), 2 at [5] of the Tribunal’s nomination decision dated 2 November 2023 (Nomination Decision)).
The Tribunal’s Nomination Decision recorded the following (SCB, 2 at [6] to [11] of the Tribunal’s Nomination Decision):
6.On 12 October 2023 the applicant’s registered migration agent advised the Tribunal the applicants director, Mr Guanpeng Yang relocated to Hong Kong.
7.On 12 October 2023 the Tribunal rescheduled the hearing and sent a written invitation to the applicant to give oral evidence and present arguments by video at a hearing on 2 November 2023.
8.On 19 October 2023 the applicant responded to the hearing invitation and said it did not wish to give oral evidence and consented to the Tribunal making a decision on the review without taking any further action to allow or enable it to appear before it. Mr Yang included a signed letter that he would not be able to attend the Tribunal hearing and sought to authorise his migration agent to attend the hearing on his behalf. The Tribunal advised the applicant by email that its migration agent could not give evidence on the applicant’s behalf. (emphasis added)
9.The applicant’s representative made further submissions by email dated 20 October 2023 confirming Mr Yang would not be available for the hearing. On 20 October 2023 the Tribunal wrote to the applicant confirming a decision would be made on the papers and invited the applicant to provide any further information it wanted the Tribunal to consider by 27 October 2023.
10. The Tribunal has at the date of this decision received no further information.
11.This matter has therefore been determined on the evidence available to the Tribunal.
The Tribunal’s Nomination Decision recorded, that on 11 August 2023, it invited Pacific Vintners to provide updated and current information, amongst other things, about the need to employ the first applicant as a sales and marketing manager, that the position could not be filled by an Australian citizen or permanent resident living in the same local area, and whether a specified Regional Certifying Body had provided the appropriate advice (SCB, 3 at [20] of the Tribunal’s Nomination Decision).
The Tribunal’s Nomination Decision recorded that the Tribunal was not satisfied reg 5.19(9)(d) of the Regulations was met, being that there was a genuine need for the first applicant to be employed in the position of sales and marketing manager with Pacific Vintners (SCB 5, at [26] of the Nomination Decision). This was because Pacific Vintners provided no updated details of Pacific Vintners’ financial figures or company structure (SCB 5, at [25] of the Nomination Decision). Further, Pacific Vintners did not provide evidence of advertising it undertook in order to fill the position for which the nominee was being sponsored (SCB 5, at [24] of the Nomination Decision).
Visa decision
On 2 November 2023, the first applicant appeared by telephone before the Tribunal to give evidence and make submissions. The first applicant was assisted by an interpreter in the Mandarin and English languages and her migration agent ([6] of the Tribunal’s reasons).
The Tribunal noted that the issue in the present case was whether the first applicant was the subject of an approved nomination by the sponsoring employer Pacific Vintners ([9] of its reasons). At [13] of its reasons, the Tribunal noted it told the first applicant at the hearing that the application for nomination for the position of sales and marketing manager with Pacific Vintners had not been approved and advised the first applicant that it considered the information would be the reason or part of the reason for affirming the decision under review.
The Tribunal noted that the first applicant asked for time to discuss the matter with her migration agent, which time was given to the first applicant. At the resumed hearing the first applicant said she had stopped working for the sponsor because of COVID-19 and trade restrictions between Australia and China, and the sponsor had promised her that if trade conditions improved then it would sponsor her again ([15] of its reasons).
The Tribunal found there was no approved nomination for the purposes of the first applicant's visa application and therefore cl 187.233(3) was not met in respect of the first applicant, and the decision not to grant the visa was affirmed ([17] and [18] of its reasons).
APPLICATION FOR JUDICIAL REVIEW AND PROCEDURAL HISTORY
On 14 November 2023, the applicants lodged an application in this Court seeking judicial review of the Tribunal’s decision. The application contained no grounds of review, however in the accompanying affidavit, the first applicant stated (as per original):
I worked in Australia since 2017, the case officer failed to take into account the impact of pandemic and misunderstanding and refused my 187 visa on 2 February 2021. The Administrative Appeal Tribunal affirmed the decision on 2 November 2023.
On 18 January 2025, the Minister in his response sought orders that the application for judicial review be dismissed by summary dismissal pursuant to r 13.13 of the Rules.
On 16 April 2025, pursuant to r. 13.13(a) of the Rules, Registrar Rohan summarily dismissed the applicants’ application for judicial review of the decision of the Tribunal, on the basis that the applicants’ claim for relief had no reasonable prospect of success.
On 14 May 2025, the proceedings were docketed to my list and set down for hearing before me.
PROCEEDINGS BEFORE THE COURT
The first applicant appeared at the hearing before me as litigant in person, assisted by a Mandarin and English interpreter. Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [37]), I explained to the first applicant the role of the Court in undertaking a review of the Registrar’s Decision and considering the judicial review application. I ensured the first applicant was in possession of all relevant documents, namely the Court Book, Supplementary Court Book, applications, supporting affidavits of the first applicant and the Minister’s written submissions. The applicants did not provide any written submissions.
Documents sought to be relied upon by the applicants
I accepted the first applicant’s affidavit affirmed on 12 November 2023, on the basis that it set out the first applicant’s grounds for review. I also accepted a second affidavit provided by the first applicant that was affirmed on 3 May 2025, on the basis that it set out submissions in relation to the reason the first applicant was seeking review of the Registrar’s Decision. The first applicant also made oral submissions.
Minister’s documents
The Minister relied on his written submissions dated 19 March 2025 and 12 June 2025 and tendered the Court Book and Supplementary Court Book which were marked Exhibits “R1”. The Minister also made oral submissions.
In this case I need to determine whether summary judgment ought to be granted. To that end, I first set out the relevant legal principles applicable to whether or not to grant summary judgment.
RELEVANT LEGAL PRINCIPLES AS TO SUMMARY JUDGMENT
Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides:
143 Summary judgment …
(2)The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section…
Rule 13.13 of the Rules provides:
13.13 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
When considering a summary dismissal application, the Court is not required to determine whether the Tribunal’s decision contained jurisdictional error, but rather whether the application for judicial review filed by the applicant has no reasonable prospect of success. Section 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), are similar to the provisions applied in this Court as set out in [25] and [26] of this judgment.
In Spencer v Commonwealth of Australia (2010) CLR 118; [2010] HCA 28, the High Court, regarding the phrase “no reasonable prospect of successfully prosecuting the proceeding”, said that no paraphrase of that phrase should be adopted to explain its operation. Hayne, Crennan, Kiefel and Bell JJ stated at [60]:
[60]Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. …
As said in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 (Mortimer J (as her Honour then was)) at [19]; “like other judicial guidance in relation to statutory discretions expressed in an unconfined way, or expressed by reference to broad considerations, it is critical that such guidance not be taken as exhaustive. Nor must it be applied as if it is a code.”
CONSIDERATION
The first applicant raised the following matters to argue that the decision of the Tribunal was wrong:
(a)First, there was no hearing by the Tribunal in respect of Pacific Vintners’ application for approval of the nomination of the first applicant and that was not reasonable. The first applicant said that advertisements for her job were also given to the Tribunal.
(b)Second, the Tribunal should have looked at whether the first applicant satisfied the criteria for the grant of the visa at the time she made her application for the visa, and at that time the first applicant contended she did satisfy the criteria.
(c)Third, the first applicant should be entitled to the visa, and she was capable of doing the job. The first applicant and her family have been living in Australia for 10 years, her children have started school and the first applicant and her husband are working very hard in Australia.
In relation to the first applicant’s first argument referred to in [30(a)] of this judgment, I took the first applicant to the paragraphs of the Nomination Decision as set out at [10] of this judgment, to outline to the first applicant that in fact the Tribunal had invited Pacific Vintners to a hearing, but Mr Yang, the director of Pacific Vintners, said that he did not wish to appear at the hearing. I also explained to the first applicant, the decision the Tribunal reached in the Nomination Decision and why the Tribunal reached that decision as set out at [11] and [12] of this judgment. After I explained this to the first applicant she replied that she understood, but did say that she had evidence of advertisements that advertised her job. I explained to the first applicant that the Nomination Decision was not the subject of judicial review and I could not look at any advertisements that the first applicant said she had, as that was not relevant to the visa decision.
In relation to the first applicant’s second argument referred to in [30(b)] of this judgment, cl 187.2 of Schedule 2 to the Regulations makes it clear that “All criteria must be satisfied at the time a decision is made on the application”. Therefore, the Tribunal was correct in relation to the visa decision, to determine whether the first applicant met the criteria in cl 187.223(3), which required an approved nomination as at the date of the Tribunal decision. The Tribunal was also correct that, as at the date of the Tribunal decision, there was no approved nomination. Further, I find that even at the time of the first applicant’s application for the visa, there was no approved nomination.
In relation to the first applicant’s third argument referred to in [30(c)] of this judgment, although I am sympathetic to the first applicant’s and her family’s situation, and understand their need to stay in Australia, the matters raised are not matters that give rise to jurisdictional error.
I find that the applicants’ application for judicial review should be summarily dismissed as there is no reasonable prospect of success of the first applicant establishing jurisdictional error in the Tribunal’s decision. This is because once the Tribunal was satisfied that the first applicant was not the subject of an approved nomination, it had no discretion to make other findings with respect to the criteria of the visa regarding the nomination. Relevantly, cl 187.233(3) of sch 2 to the Regulations, was not met as the nomination application had been refused by the department and the Tribunal on review affirmed that decision. Further, the Nomination Decision is not the subject of judicial review and the first applicant has no standing to seek judicial review of the Nomination Decision.
CONCLUSION
As no jurisdictional error has been disclosed, the application must be dismissed.
COSTS
I will hear the parties as to costs.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 2 July 2025
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