Islam v Minister for Immigration and Multicultural Affairs

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa (186 visa).
2. The application for judicial review in this matter was summarily dismissed by a Registrar of this Court on 14 March 2025. The orders made on that date were subsequently set aside, by consent, on 9 May 2025: Islam v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 736 (Earlier Judgment). The matter was listed for final hearing on 17 June 2025.
3. For the following reasons, I accept the Minister's submission that the application for judicial review in this matter ought ultimately to be dismissed.

1. The background to this matter is otherwise as was set out in the Earlier Judgment.
2. The applicant applied for the 186 visa on 6 March 2018 on the basis of a nomination lodged by his nominating employer (Nominating Employer).
3. 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.
4. 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 (First 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.
5. On 13 July 2021, the applicant sought an update from the Tribunal regarding his case, by telephone, directly. Another call appears to have subsequently been made by the applicant to the Tribunal on the same date. The relevant Case Note indicates that the applicant sought a "Medicare letter" and informed the Tribunal "that he wish[ed] to change his email address" to a specified address (Second Email Address). The Case Note indicates that the Tribunal updated its records in relation to the Second Email Address.
6. 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.
7. 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 telephone 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 Second Email Address was additionally confirmed. Shortly after this conversation, a hearing invitation was sent by email to the Representative at the First Email Address, with a "courtesy copy" also being sent to the Second 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 at the First Email Address 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 by email (sent to the First Email Address) 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 lack of 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. On 21 October 2021, the applicant filed an application with this Court seeking judicial review of the Tribunal's decision. The applicant relied upon the following grounds of review:

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. For the reasons given in the Earlier Judgment, ground 3 disclosed no arguable basis for finding jurisdictional error. It was considered that grounds 1 and 2 did disclose an arguable basis, insofar as they took issue with the 359A Letter and the Tribunal's finding that it lacked power to permit the applicant to appear at a hearing before the Tribunal.
2. As explained in the Earlier Judgment, this was because of the particular form relied upon by the Tribunal as nominating an "authorised recipient".

Was the 359A Letter sent to the applicant's "authorised recipient"?

1. 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". If this were 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) of the Act. 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 v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413 (Hasran) at [25]-[32] (Jacobson, Gilmour and Foster JJ).
2. Section 379G of the Act provided:

(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. However, 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 state in the form (at least expressly) that he was appointing his Representative as his "authorised recipient".
2. At the listing on 9 May 2025, I discussed with the Minister's representative whether the form in question effectively appointed an "authorised recipient". The form requested personal details regarding both the applicant and his Representative. It did not refer to any of those details as a means or preference for contact, or state that the Representative was authorised by the applicant to receive documents in connection with the review. An earlier case before another Judge was discussed, in which writs had been issued after the Minister had conceded that a similar form was ineffective in appointing an authorised recipient.
3. In submissions filed in advance of the final hearing, the Minister contended that the form had validly appointed an authorised recipient. In doing so, the Minister relied upon a decision of Judge Kendall in Bhandari v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 60 (Bhandari). In that case, the Minister appears to have sought to concede that the form in question did not validly appoint an authorised recipient. The form in that case appears to have been similar to the form in the present case, in that it requested details in relation to a "Representative" but did not expressly invite information regarding the appointment of an "authorised recipient": Bhandari at [78]-[79]. However, Judge Kendall considered that the form had nonetheless been effective in appointing an authorised recipient. Relevant passages in his Honour's decision include the following:
   1. As set out above, the Minister submits that the review application form did not indicate any authorisation of the representative to receive documents in connection with the review instead of the applicants for the purposes of s 379G(1)(b) of the Act and, as such, the Tribunal's hearing invitation was invalid because it was not given to the applicants by one of the methods specified in s 379A of the Act...

89. The Court disagrees for the reasons that follow...

1. The circumstances of this matter differ to those that arose in Nguyen. Here, the applicants completed their "application for review" form and included details of their authorised recipients in that form.
2. The Court acknowledges that the Tribunal's application form does not expressly include words indicating "authorisation" for that representative to "receive documents". However, the Court is satisfied that, in the context of the way in which the details were provided (that is, where the details were provided with an application for the Tribunal to review the delegate's decision), it is reasonable to infer that the representative is appointed to provide assistance in relation to that review (and, by extension, to receive documents in relation to that review).
3. The Court also notes that, unlike the form completed in Nguyen, the form in this matter did not provide different options in relation to the assistance that could be provided by the representative and it was not a separate form to the application made. That is, the appointment of the representative formed part of the "application for review" form.
4. In those circumstances, the Court is satisfied that the representative was properly appointed as an "authorised recipient" as contemplated by s 379G of the Act and that the Tribunal's hearing invitation (sent to the applicants' representative) was valid.

1. His Honour also noted (at [94]) that the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v Nguyen [2022] FCAFC 200; (2022) 295 FCR 640 had not accepted that s 494D of the Act required a notice to state that the authority conferred was for the Minister to give documents to the authorised recipient instead of the person concerned (at [11], [30]-[38]).
2. The issues with the form in this case pose an interesting question. In submissions, the Minister queried the purpose of providing the Representative's details if the applicant did not wish for them to be used for contact by the Tribunal. However, the applicant also provided his own personal contact details in the form (including a residential address). Such details could, conceivably, have been used for contact. The details regarding both the applicant and his Representative appear to have been provided because they were requested in the form. However, the form did not ask whether the Representative was authorised to receive documents from the Tribunal. The Minister accepted that the role of a representative and the role of an authorised recipient before the Tribunal were not one and the same. The Minster accepted that an applicant could, for example, appoint one person as their representative before the Tribunal and appoint another person as their authorised recipient.
3. The Minister relied upon evidence of the applicant subsequently informing the Tribunal by telephone that he wished to maintain his Representative as his authorised recipient. However, the Minister accepted that "written notice", for the purposes of s 379G of the Act, is to be determined objectively by reference to the time at which it is given. The subjective intentions of the applicant would not answer this question. However, I accept that the materials indicate that the conduct of the applicant and the Tribunal was consistent with a mutual understanding that the applicant's Representative was appointed as his authorised recipient.
4. Ultimately, it is unnecessary to decide whether an authorised recipient was effectively appointed in this case (interesting though the question may be). This is because, for the reasons given below, the answer to that question would not affect the outcome in this matter.

The Minister's argument regarding s 379A of the Act

1. The Minister contended that even if the applicant had not appointed his Representative as his "authorised recipient", the 359A Letter was nonetheless sent to the applicant pursuant to s 379A(5) of the Act. That provision 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. As considered in the Earlier Judgment, whether or not this is the case turns upon whether the email address used by the Tribunal was the "last... email address or other electronic address... provided to the Tribunal" by the applicant "in connection with the review".
2. As set out above, the applicant provided the same email address in his application form to the Tribunal both in respect of his personal email address and that of his Representative. 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".
3. However, the applicant subsequently had a number of telephone conversations with representatives of the Tribunal. During one of those conversations, the applicant provided the Second Email Address in the context of requesting a "Medicare letter". In a subsequent conversation, the applicant advised that his agent was "no longer acting for him". The applicant did not provide the requested written confirmation to the Tribunal of this, however, and subsequently asked the Tribunal to "disregard previous" advice as he still intended to be represented by his Representative. In the final conversation, the applicant confirmed that he wished for the Tribunal to continue sending correspondence to his Representative. In response to a "check" of the applicant's earlier provided Second Email Address on file, this information was "confirmed".
4. The Minister submitted that confirmation of the Second Email Address in the last part of the conversation recorded did not relevantly provide the Second Email Address to the Tribunal "in connection with the review". In relation to interpretation of this phrase, the Minister relied upon Somjich v Minister for Home Affairs [2019] FCA 1921; (2019) 168 ALD 219 (Rangiah J) (Somjich). In Somjich, the applicant had provided a Gmail address in his application form to the Tribunal. The applicant informed the Court that the address had belonged to an "education agent". The applicant had subsequently corresponded with the Tribunal from a Hotmail address, but did not provide an updated contact details form as requested by the Tribunal. At [57], Rangiah J reasoned:
   1. However, the relevant email address must, for the purposes of s 379A(5) be provided to the Tribunal, "in connection with the review". The phrase "in connection with" is, "capable of describing a spectrum of relationships from the direct and immediate to the tenuous and remote": Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 288. Its meaning must depend upon the statutory context. Section 379A(5) deals with how the Tribunal may provide documents to an applicant for the purposes of, inter alia, complying with the natural justice requirements of s 359A(1). Plainly, it would be unworkable for the Tribunal to be required to track down an applicant's whereabouts in order to comply with its obligation to provide the applicant with documents. As Collier J observed in Khan v Minister for Immigration and Border Protection [2015] FCA 125 at [21], s 379A(5) makes it the responsibility of an applicant to ensure the currency of their contact details. The purpose of s 379A(5) is both to place an onus the applicant to keep the Tribunal notified of his or her address for the receipt of documents and to allow the Tribunal to comply with its obligation to provide documents by sending them to the address provided. In this context, the expression "provided to the Tribunal...in connection with the review" is not satisfied merely by an applicant providing an email address that has some tenuous, unclear and uncertain relationship with the review. The provision requires that [the] applicant make it sufficiently clear to the Tribunal that the email address provided is the email address that is to be used for the provision of documents.
5. I accept the Minister's submissions. The applicant's reference to the Second Email Address appears from the Case Notes to have been initially associated with provision of a Medicare letter. Within this context, it is not apparent that it was relevantly provided "in connection with the review". Although the applicant subsequently advised that his Representative was no longer acting for him, he did not provide the updated contact details form requested by the Tribunal and, in any event, subsequently withdrew this advice. Although the last email address referenced in conversation with the Tribunal appears to have been the Second Email Address, this appears to have occurred in the context of the Tribunal representative seeking confirmation of its records (rather than the address being provided by the applicant for the purpose of advising the address to which documents were to be sent). The applicant did not, through this exchange, make it "sufficiently clear to the Tribunal" that the Second Email Address was "the email address that [was] to be used for the provision of documents". To the contrary, the applicant appears to have made it clear to the Tribunal in the relevant conversation that he wished for the Tribunal to continue to send him documents and correspondence at the email address previously utilised by the Tribunal. As set out above, that email address was the only email address provided in the Tribunal application form (both in respect of the applicant personally and his Representative's contact details).
6. It follows from the above that I accept the Minister's submission that the 359A Letter was sent in accordance with s 379A(5) of the Act. In consequence, as the applicant did not respond 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. I am therefore not persuaded that the Tribunal's approach to the 359A Letter, or cancellation of the hearing, demonstrates jurisdictional error on the part of the Tribunal.
7. Even if (contrary to the above) error had been found, for the reasons that follow, I accept the Minister's submission that relief would be refused in this case on the basis of futility.

1. The Minister submitted that any error by the Tribunal in relation to the 359A Letter was not material to the outcome in this matter. The Minister observed that the Tribunal's decision turned upon the objective fact that the applicant did not have an approved nomination (the related nomination having been refused and the Tribunal having affirmed that decision). In these circumstances, the Tribunal was bound to affirm the Delegate's decision, regardless of anything said to it by the applicant at an oral hearing. The Minister relied upon cases in which applicants seeking to demonstrate jurisdictional error were found to have borne the onus of demonstrating materiality.
2. As discussed at hearing, however, it is not clear that the applicant was required to demonstrate materiality in this case, having regard to the reasoning in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717; (2023) 298 FCR 400 (Wigney J). Ultimately, it is unnecessary to decide this question. No breach of s 359A of the Act has been found. Even if it had been found, for the reasons below, I would have accepted the Minister's submission that relief ought to be refused on the basis of futility.

1. The Minister submitted that it would be futile to remit the matter to the Administrative Review Tribunal (the Tribunal's successor) for reconsideration. This is in circumstances where the relevant nomination has been refused, the refusal has been affirmed by the Tribunal and judicial review has not been sought regarding the nomination decision.
2. As discussed in the Earlier Judgment, 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 (Singh) 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 (KC), 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. However, I accept the Minister's argument that KC is properly distinguishable from the present matter. The decision in KC turned upon its particular facts. Importantly, in KC, the error found affected both the nomination review decision and the visa review decision. Determination of the reviews out of order by the Tribunal had meant that neither were able to succeed. Both review decisions were therefore affected by an interrelated jurisdictional error. In those circumstances, the nominator was understandably considered to have a "strong case" for an extension of time in which to seek judicial review of the nomination review decision.
6. In the present case, unlike in KC, there is no reason to doubt the correctness of the nomination review decision. Judicial review has not been sought in relation to that decision. Relevant error has not been contended in relation to that decision. The question of error in this case occurred after the nomination review decision had been made. Even if that error had been demonstrated (contrary to what has been found above), it was not an error affecting both decisions.
7. In these circumstances, I accept the Minister's submission that futility has been demonstrated. If the matter were remitted to the Administrative Review Tribunal, then it would inevitably affirm the Delegate's decision. The applicant has no approved nomination, as would be required in order for him to meet cl 186.223 of Schedule 2 to Regulations. The nomination that he relied upon has been refused. No legal challenge has been made to the Tribunal's decision affirming that refusal. In these circumstances, following Singh, futility has been demonstrated.
8. It follows that even if error had been established in relation to the Tribunal's decision, relief would nonetheless have been refused: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [27]- [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

1. For the above reasons, the application before the Court must be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.