Ismail v Minister for Immigration and Citizenship

1. Mr Ismail is a cabinet-maker. His skills appear to be in demand in Australia. On 14 February 2020, he applied for an Employer Nomination (Permanent) (Class EN) (subclass 186) visa. As the name suggests, this category of visa is potentially available to a person who has been nominated to a position by an employer. And therein lies the problem: the employer nomination of Mr Ismail was rejected in a separate process by a delegate of the minister, the first respondent in these proceedings. Without a valid employer nomination for Mr Ismail and his position, the delegate (and the Administrative Appeals Tribunal on review) concluded Mr Ismail could not meet the requirements that govern this class of visa.
2. Mr Ismail sought judicial review of the Tribunal's decision. On 11 June 2025, the minister applied to have the proceedings summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules) and summary judgment given under s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). A judicial registrar of this Court decided to dismiss the proceedings under r 13.13(a) of the Rules on 1 July 2025. Mr Ismail thereafter sought review of that decision by a judge of this Court. That review proceeds de novo, which means I must address myself to the same question before the judicial registrar - namely, whether I am satisfied the applicant has no reasonable prospect of successfully prosecuting the proceedings.
3. I am satisfied the applicant has no reasonable prospects. There is no point in allowing the application for judicial review to proceed to a full hearing - a process that will entail expense and delay to no end. I confirm the decision of the judicial registrar to summarily dismiss the proceedings. I explain my reasons for that conclusion below.

THE REQUIREMENTS APPLICABLE TO THIS CLASS OF VISA

1. The requirements governing the award of this class of visa are found in cl 186.233 of sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). It is worth setting out that provision in detail at the outset since it will assist the reader in understanding the difficulties the applicant faces in these proceedings. Clause 186.233 provides:

(1) The position to which the application relates is the position:

(a) nominated in an application for approval that:

(i) identifies the applicant in relation to the position; and

(ii) is made in relation to a visa in a Direct Entry stream; and

(iii) seeks to meet the requirements of subregulation 5.19(10); and

(b) in relation to which the declaration mentioned in paragraph 1114B(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 not more than 6 months after the Minister approved the nomination.

1. It is clear from the text of the provision that an approved employer nomination must be in place when the application of the prospective visa-holder comes to be decided. The Full Federal Court confirmed in Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 that an applicant could not substitute a fresh or alternative nomination at a later point in time. As Mortimer J explained (at [88]): "... the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision."
2. That said, I turn to the application for a visa in this case.

1. Mr Ismail's application for the visa in question is reproduced in exhibit one (the court book) at pp 33ff. The minister's department subsequently confirmed it had received an employer nomination from B&B Decorators Pty Ltd. On 4 August 2020, the department wrote to Mr Ismail to advise him the delegate had since refused the employer nomination. The letter asked Mr Ismail to comment on that news.
2. B&B Decorators applied to the Tribunal for review of the delegate's decision on 21 August 2020. That review was finalised on 9 November 2023 when the Tribunal decided to affirm the delegate's decision to reject the nomination. B&B Decorators did not seek judicial review of that decision.
3. In the meantime, a delegate of the minister considered Mr Ismail's application for a visa. The delegate refused the visa because there was no valid employer nomination at the time the decision was made. The delegate's decision and statement of reasons are dated 7 January 2021. They are reproduced in the court book at pp 65-66.
4. Mr Ismail applied to the Tribunal seeking review of the delegate's decision to refuse the visa. The Tribunal invited the applicant to attend a hearing listed for 26 October 2023. The Tribunal rescheduled the hearing to 9 November 2023 to accommodate the applicant's travel commitments. Neither the applicant nor his representative attended the relisted hearing.
5. The Tribunal wrote to the applicant and his representative on 15 November 2023 - after the date of the relisted hearing - to invite comment on potentially adverse information. The request for comment was made pursuant to s 359A of the Migration Act 1958 (Cth) (the Migration Act). A copy of the letter is reproduced in the court book at pp 133ff. The letter confirmed the Tribunal had separately decided to affirm the delegate's decision to refuse the nomination by B&B Decorators. The Tribunal asked for comment on this formal development by 29 November 2023. The applicant did not respond.
6. The Tribunal's decision to affirm the delegate's decision to refuse the application for a visa is dated 30 November 2023. A copy of that decision is reproduced in the court book at pp 23ff. In its statement of reasons, the Tribunal records the history of its interactions with the applicant and his representative in advance of the relisted hearing. The Tribunal also records writing to the applicant pursuant to s 359A of the Migration Act. It then proceeds to the substance of the case. After summarising the effect of cl 186.233 of sch 2 to the Regulations, the Tribunal found (at [17]-[18]):

17. The Department on 4 August 2020, refused the nomination application lodged by the nominating business and the delegate's decision was affirmed by the Tribunal on 9 November 2023. Therefore, there is no approved nomination to satisfy cl.186.233(2) and the primary applicant does not meet cl.186.233.

18. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

1. Mr Ismail sought judicial review of the Tribunal's decision. The application for review under s 476 of the Migration Act was filed on 29 December 2023. He identified three grounds of review. He told me at the hearing that he paid his lawyer to draft the grounds but his lawyer was unavailable. I note there is no lawyer listed on the record.
2. The grounds are:
   • The Tribunal failed "to give genuine, proper and realistic consideration" to Mr Ismail's application for a visa;
   • The Tribunal denied the applicant procedural fairness; and
   • There was a reasonable apprehension that the Tribunal was biased against the applicant in all the circumstances.
3. The minister applied for summary dismissal. That application was heard before a judicial registrar. The matter has now come before me. As I explained at the outset, the review proceeds de novo: I revisit the question that was before the judicial registrar.
4. Mr Ismail attended the hearing before me. He was assisted by an interpreter. During the hearing, I explained the question before me - namely whether I was satisfied there was no reasonable prospect of the applicant successfully prosecuting the proceedings. I also explained the concept of jurisdictional error.
5. I accept it is appropriate to tread carefully as I consider the merits of the applicant's case. The summary dismissal power is not to be used lightly given it has the effect of shutting down the review: see, generally, Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] per French CJ and Gummow J.
6. My evaluation of the applicant's prospects inevitably involves an evaluation of the grounds of review he identified. I will deal briefly with each of those grounds.
7. There is no basis to the applicant's complaint that the Tribunal failed to properly consider his claim. When I asked him to explain the criticism at the hearing before me, Mr Ismail was unable to point to anything of relevance that the Tribunal had missed. His complaint appears to be that the Tribunal should have waited for him to arrange an alternative nomination. He said he had acted in good faith and was keen to work in accordance with the law. I do not doubt his good intentions, but they are beside the point. The point is the absence of an approved nomination. It was an insurmountable obstacle to his case. It follows there is no jurisdictional error in respect of the first ground.
8. There is no basis to Mr Ismail's claim that he was denied procedural fairness. He was validly and appropriately invited to a hearing in accordance with ss 425 and 425A of the Migration Act. He did not appear. He was also put on notice of the adverse information about the fate of the decision in relation to the employer's nomination. He was asked for comment pursuant to s 359A. I accept the invitation to comment came after the date of the hearing, but that was because the Tribunal's decision in relation to the employer nomination was not made until that time. In any event, the applicant was provided with an opportunity to comment in accordance with s 359A and he did not reply. The Tribunal complied with its procedural fairness obligations. This ground of review must also fail.
9. The third ground alleging apprehended bias has no basis. Mr Ismail told me he did not wish to press the claim; he said that was something his lawyer said when drafting the grounds. There is nothing apparent in the reasons or the file that would suggest apprehended bias, and the claim should never have been made. It is a matter of real concern that a person whom the applicant identified as his lawyer - and who accepted payment from the applicant to draft the grounds - should make a serious allegation of this nature without providing any particulars or referring to any evidence in support.
10. The applicant's grounds (and Mr Ismail's submissions at the hearing) failed to grapple with the fatal flaw at the heart of this case: there was no valid employer nomination in place at the time of the decision or subsequently. That meant the Tribunal had no alternative but to decide as it did because the applicant could not satisfy the requirement in cl 186.233. For the reasons explained by the Full Court in Singh (at [88]), that was effectively the end of the matter. Even if I were able to identify jurisdictional error as contended by the applicant, it would be most unlikely that the Court would exercise the discretion to provide relief because the Tribunal was bound - and would be bound on remittal - to reach the same decision.

1. I am satisfied the applicant has no reasonable prospects of successfully prosecuting the application for review. There is very little chance of him establishing the Tribunal's decision was affected by jurisdictional error if he were allowed to proceed to a hearing. In the unlikely event that he were to identify an error, there is very little chance that the Court would exercise the discretion to provide relief given a further hearing in the Tribunal would almost certainly be futile.
2. In those circumstances, the decision of the judicial registrar to summarily dismiss the application for judicial review pursuant to r 13.13(a) of the Rules must be affirmed. I will hear from the parties as to costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.