Islam v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 736

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).

1. On 10 April 2025, the applicant applied for review of a Registrar's decision made on 14 March 2025. By that decision, an application for judicial review (Substantive Application) was summarily dismissed pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), with costs.
2. The Substantive Application had sought review of a decision of the Administrative Appeals Tribunal (Tribunal) (as it was) affirming a decision of a delegate (Delegate) of the first respondent (Minister). The Delegate had refused to grant the applicant an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa (186 visa).

1. The applicant applied for the 186 visa on 6 March 2018 on the basis of a nomination lodged by his nominating employer (Nominating Employer).
2. The Delegate refused the visa application on 7 June 2019. The Delegate found that the nomination referred to in cl 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) had been refused on 8 May 2019. The Delegate therefore found that the applicant was unable to meet cl 186.223(2), which required the nomination to have been approved.
3. On 17 June 2019, the applicant applied for review of the Delegate's decision by the Tribunal. In the relevant form, the same email address was given in relation to the applicant and his representative (Representative). No other email address was provided to the Tribunal through the application form.
4. On 13 July 2021, the applicant sought an update from the Tribunal regarding his case, by telephone, directly. The relevant Case Note indicates that the applicant also requested a Medicare letter and informed the Tribunal "that he wish[ed] to change his email address" to a specified personal address (Personal Email Address). The Case Note indicates that the Tribunal "updated our record" in relation to the Personal Email Address.
5. On 19 July 2021, the applicant advised the Tribunal by telephone that his "migration agent was no longer acting for him". The Tribunal sought written confirmation of this.
6. On 13 August 2021, the Tribunal wrote to the applicant by email expressing the following:

... You nominated [the Representative] as your authorised recipient to receive correspondence in connection with this review. On 19 July 2021 you verbally advised the Tribunal that [the Representative] no longer represent you in this review and should no longer receive correspondence on your behalf.

It is important that you now complete and return one of the following forms to us as soon as possible. We will continue to send correspondence to [the Representative] if you do not return either of the forms mentioned below.

1. Appointment of Representative/Appointment of Authorised Recipient form (MR5)

If you wish to appoint another person as your authorised recipient and/or representative, you should complete this form. When we have received the completed form, all future correspondence will be sent to the newly nominated authorised recipient. Please refer to the reverse side of the form for more information.

OR

2. Change of Contact Details form (MR6)

If you do not wish to appoint another person as your authorised recipient and want all future correspondence from us to be sent to you directly, you should complete this form to confirm the withdrawal of [the Representative] as your authorised recipient. When we have received the completed form, all future correspondence will be sent to you...

1. On 13 August 2021, a Tribunal representative also spoke with the applicant by telephone. The applicant advised that he would respond to the Tribunal's letter as soon as possible. An attempt made on behalf of the Tribunal to contact the applicant again on 16 August 2021 was unsuccessful.
2. A Case Note records that, on 18 August 2021, the applicant advised the Tribunal by phone to "disregard previous advi[c]e" as he still intended to be represented "by his Rep". It is said to have also been "confirmed that the Rep is still the Authorised Recipient and to continue sending correspondence to him". The applicant's Personal Email Address was also confirmed. Shortly after this conversation, a hearing invitation was sent by email to the Representative, with a "courtesy copy" also being sent to the Personal Email Address. The invitation articulated the Tribunal's understanding that it was required to give the documents to the Representative "as the authorised recipient of the applicant", rather than the applicant.
3. On 26 August 2021, the Tribunal emailed the Representative an invitation to comment on or respond to information pursuant to s 359A of the Migration Act 1958 (Cth) (Act) (359A Letter). The particulars of the information were said to be:

The application for approval of the nominated position made by [the Nominating Employer] 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 on 30 April 2021. 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...

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.

1. On 8 September 2021, a reminder of the hearing was sent by SMS. However, no response was received by the Tribunal to the 359A Letter by the stipulated deadline (9 September 2021). On 10 September 2021, the Tribunal notified the Representative by email that the hearing had been cancelled.
2. On 22 September 2021, the Tribunal affirmed the Delegate's decision.

1. The Tribunal set out the background to the matter at [1]-[14] of its decision, including the non-response to the 359A Letter and the consequent cancellation of the scheduled hearing. This was explained at [14] of the Tribunal's decision as follows:
   1. The applicant has not provided the comments or response within the prescribed period (or at all) and no extension has either been sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect off s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments or response.
2. At [17]-[22], the Tribunal reasoned:
   1. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

18. In addition, this criterion also requires that:

• the nomination has been approved and has not been subsequently withdrawn

• there is no 'adverse information' known to Immigration about the person who made the nomination or a person 'associated with' that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

• the position is still available to the applicant, and

• the visa application was made no more than six months after the nomination of the position was approved.

1. Based on the evidence before it, the Tribunal is satisfied that on 8 May 2019 the application for approval of the nominated position for the applicant made by the nominator was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was affirmed by the Tribunal on 30 April 2021. This means that the nominator's application for the nominated position has not been approved.
2. There is no evidence to suggest that the applicant is the subject of any other approved nomination.
3. Accordingly, the Tribunal is not satisfied that the applicant meets the requirements of cl. 186.223.
4. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

1. Having regard to the above, the Tribunal affirmed the Delegate's decision (at [23]).

1. The Substantive Application was filed on 21 October 2021.
2. On 14 March 2025, orders were made by a Registrar summarily dismissing the Substantive Application, with costs.
3. The applicant applied for review of the Registrar's decision on 10 April 2025. At the hearing on 1 May 2025, an order was made (without objection) extending time pursuant to r 21.02(2)(a) of the GFL Rules. This was in circumstances where there was at least some explanation for the delay and, due to delay in processing of the review application, it was not practicable to list it for hearing within the 14-day period contemplated under r 21.03(2) of the GFL Rules: see Lin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1019 at [25] (Judge Given).
4. As set out below, the Minister ultimately accepted that the present matter was not a matter suitable for summary dismissal. Orders were made by consent on 9 May 2025, setting aside the orders made on 14 March 2025 and setting a timetable for final hearing. What follows are the reasons for those orders.

1. The review of an exercise of power by a Registrar must proceed by way of a hearing de novo: r 21.04(1) of the GFL Rules.
2. Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides as follows:

(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...

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.

1. In considering an application for summary dismissal, the Court is not required to determine whether or not the Tribunal's decision is affected by jurisdictional error. Rather, the Court is concerned with whether the case raises a real or genuine dispute that might reasonably be resolved in an applicant's favour: see AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33] (Judge Given) and the cases cited therein.

1. The grounds relied upon in the Substantive Application were stated as follows:

As part of the reason for rejecting the claim, the Administrative Appeals Tribunal ('the AAT') stated in paragraph 13, "The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 9 September 2021, the Tribunal may make a decision on the review without taking further steps to obtain to comments or response and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments". The AAT Identifies a wrong issue based on a wrong question in its decision in assessing my situation and claims. The Tribunal identify wrong issue they rejected my claim.

As part of the reason for rejecting the claim, the Administrative Appeals Tribunal ('the AAT') state in paragraph 14, "The applicant has not provided the comments or response within the prescribed period (or at all) and no extension has either been sought or granted. In these circumstances, s. 359C applies and pursuant to s. 360(3) the applicant is not entitled to appear before the Tribunal. The effect off s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the comments or response". The Tribunal made jurisdictional error in this paragraph by interpreting s.359C and s.360(3).

As part of the reason for rejecting the claim, the Administrative Appeals Tribunal ('the AAT') stated in paragraph 19, "Based on the evidence before it, the Tribunal is satisfied that on 8 May 2019 the application for approval of the nominated position for the applicant made by the nominator was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it was affirmed by the Tribunal on 30 April 2021. This means that nominator's application for the nominated position has not been approved". The AAT shows Bias based on conscious or unconscious prejudice by ignoring relevant material in its decision and assessing my situation and claims. The tribunal shows prejudice when they rejected my claim.

1. I kindly request the Honourable Court to kindly set aside the AAT's decision of dated 22 September 2021.

1. Ground 1 contended that the Tribunal identified "a wrong issue based on a wrong question" in assessing the applicant's situation and claims. At hearing, the applicant was unable to explain what wrong issue or question he believed that the Tribunal considered. However, his complaint from the written grounds appeared to be directed to the 359A Letter. Ground 2, relatedly, took issue with the Tribunal's finding that it lacked power to permit the applicant to appear at a hearing, by reference to Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 (Hasran).
2. As set out above, the Tribunal proceeded on the basis that it was obliged to send the 359A Letter to the Representative as the applicant's "authorised recipient". Had this been correct, then the Tribunal would have been taken to have given the document to the applicant on account of s 379G(2) of the Act. The 359A Letter appears to have otherwise complied with the requirements of the Act, by reference to ss 359A, 359B and 379A(5). Receipt would therefore have been deemed in accordance with s 379C(5). In such circumstances, where the applicant had not responded within the requisite period, the Tribunal's finding that it lacked the power to allow him to appear at an oral hearing was consistent with the reasoning in Hasran at [25]-[32] (Jacobson, Gilmour and Foster JJ).
3. However, there appears to be an arguable basis for finding that the Representative had not been appointed as the applicant's "authorised recipient" within the meaning of s 379G of the Act. That provision was as follows:

(1) If:

(a) a person (the applicant) applies for review of a Part 5‑reviewable decision; and

(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to receive documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

Note: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.

(1A) For the purposes of subsection (1):

(a) paragraph (1)(a) is taken to also apply to an application for review of a Part 5‑reviewable decision where the application is not properly made under section 347; and

(b) in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not properly made under that section).

(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

(3) Subject to subsection (3A), the applicant (but not the authorised recipient) may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient.

(3A) In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.

1. In the present case, the only "written notice" that the applicant gave to the Tribunal of anything appears to have been through his review application form. That form did not, at least expressly, refer to the appointment of any "authorised recipient" for receipt of documents from the Tribunal. The form did query the applicant's details (including his address details, phone details and email address) as well as the identity and similar details associated with his "Representative". However, the form did not query whether the Representative was "authorised by the applicant to receive documents in connection with the review" on his behalf. As it happens, the applicant provided the same email address for himself and his Representative on the form. However, he did not (at least expressly) through the form appoint his Representative as his "authorised recipient".
2. Having regard to the above, it appears at least arguable that the applicant did not provide the relevant "written notice" of an "authorised recipient" required by s 379G of the Act.
3. In another case, this may have been of lesser consequence in circumstances where the applicant provided the same email address in connection with his own name and that of his Representative. This is because of s 379A(5) of the Act, which permitted the Tribunal to send a document by the following methods:

379A Methods by which Tribunal gives documents to a person other than the Secretary

...

Transmission by fax, email or other electronic means

(5) Another method consists of a member or an officer of the Tribunal transmitting the document by:

(a) fax; or

(b) email; or

(c) other electronic means;

to:

(d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or

(e) if the recipient is a minor - the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.

1. Transmission of the 359A Letter to the only email address provided would, ostensibly, have transmitted it to the "last... email address or other electronic address... provided to the Tribunal" by the applicant "in connection with the review".
2. However, s 379A does not appear to contain a similar requirement to s 379G that the notification occur in writing. As set out above, Case Notes indicate that the applicant subsequently had a number of telephone conversations with representatives of the Tribunal. During those conversations, the applicant provided the Personal Email Address in connection with the review. Although he is said to have subsequently orally advised that his Representative was "still the Authorised Recipient and to continue sending correspondence to him", this was not "written notice" to the Tribunal as was required for the appointment of an "authorised recipient" under s 379G of the Act. After this information was provided, the Tribunal representative appears to have "confirmed" information regarding his Personal Email Address (following which a hearing invitation was sent both to the Representative and the Personal Email Address). Within this context, it is at least arguable that the last electronic address provided to the Tribunal by the applicant "in connection with the review" was the Personal Email Address.
3. It is therefore arguable that the Tribunal did not effectively send the 359A Letter to the applicant, with the result that it was mistaken regarding its inability to provide the applicant with a hearing on account of the statutory consequences considered in Hasran. Subject to futility, which is considered below, I consider that the result of this potential argument is that the Substantive Application has a reasonable prospect of success.

1. Ground 3 contended bias. However, it is not apparent from the applicant's submissions or the materials how such a ground could be said to have any reasonable prospect of success.
2. I accept that the Tribunal did not refer to every document before it. As the applicant suggested in his application for review of the Registrar's decision, the Tribunal did not substantively address certain supporting documentation he had provided, such as his educational qualifications, employment records, police clearances and character references.
3. However, the Tribunal was not obliged to refer to every document that was before it. An acceptable reason why the Tribunal may not have referred to this evidence is that it was not material to its decision.
4. It is difficult to see how the documents described by the applicant could be said to have been material to the findings made by the Tribunal, which turned exclusively on the fact that the applicant did not have a relevant approved nomination at the time of the Tribunal's decision. In these circumstances, I would not infer that the Tribunal failed to consider the evidence in question. I do not consider that a ground of jurisdictional error on this basis (or on the ground of bias) has any reasonable prospect of success.

1. Another potential basis that was initially identified by the Minister for finding that the matter lacked reasonable prospects of success was futility. This was in circumstances where the relevant nomination had been refused, the refusal had been affirmed by the Tribunal and judicial review had not been sought regarding the nomination decision.
2. I accept that there are authorities favouring a finding of futility in circumstances similar to the present. Such authorities include Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267 at [44]- [45] and [81]-[90] per Mortimer J (as her Honour then was) (Jagot and Bromberg JJ agreeing).
3. However, in KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4, Rares J rejected a futility argument. This was in circumstances where an approved nomination was required for the grant of the subclass 457 visa under consideration and the relevant nomination had been refused. The Tribunal had decided the visa application review before the nomination review that was before it, with the result that they were both unable to succeed on account of the timing of the decisions in question. Justice Rares considered:
   1. I reject the Minister's argument that it would be futile to make orders to set the visa decision aside and remit it to the Tribunal. Because of the nature of the link between the visa and nomination decisions, once one failed, like a house of cards collapsing, so must the other also fail. That follows from the interdependence of their reasoning processes, namely, that, in the visa decision, there was no approved nomination so that the visa could not be granted and, because, later it had to refuse to grant the nomination application as a result of Mr KC not having a subclass 457 visa (stemming from the visa decision and the Tribunal's finding that, by then, he could not be granted the visa due to its failure to take into consideration, or ignorance of, his application for judicial review).
   2. The Minister's resort to invoking reg 2.72(5) as to the need for his satisfaction that the visa applicant will work in the nominated occupation goes nowhere. The Tribunal made no operative finding in the visa decision other than that, for the purposes of cl 457.223(4)(a), there was no extant approval of a nomination under s 140GB. Thus, if the nomination decision were set aside and the College wished to pursue a review of the delegate's decision, it is still possible for the nomination to be approved under s 7(2)(c) of the Acts Interpretation Act and cll 6702(2)(c), 6704(6) and (7): De L 187 CLR at 653.
   3. Once the visa decision is set aside and remitted, so long as the College still wishes to sponsor Mr KC, the College would have a strong case to put to the Federal Circuit and Family Court of Australia (Division 2) that it would be necessary in the interests of the administration of justice for it to be granted an extension of time to seek review of the nomination decision under s 477(2) of the Act. If that extension were granted and the application for constitutional writ relief succeeded, the two Tribunal reviews could then be decided together or in tandem, as they ought to have been years ago.
4. Justice Rares therefore did not accept that relief was futile, in the circumstances of that case, given that it was possible for the nominating company to seek an extension of time in which to seek judicial review of the nomination decision.
5. Having regard to the above, the application to this Court may well be futile. However, an argument may be available to the applicant that it is not, based upon the reasoning in KC. Whether or not that argument ought to succeed is not the question that is presently before the Court. The question presently before the Court is whether the application ought to be summarily dismissed.

1. The above issues were discussed with the parties at the listing on 9 May 2025. After some consideration, the Minister agreed that the present case was not one that ought to be summarily dismissed. Rather, it is a matter that would more appropriately be determined through a final hearing.

1. I agree with the Minister that the present matter ought not to be summarily dismissed, but ought to be determined through a final hearing.
2. For the above reasons, I have made orders (by consent) setting aside the Registrar's orders on 14 March 2025 and providing a timetable for final hearing.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.