Kaur v Minister for Immigration and Citizenship [2025] FCA 1478

Refusal of the visas by a delegate of the Minister

1. On 2 December 2015, the applicants made their combined application for the visas under the Direct Entry stream (the visa applications). The applicant was required to satisfy the criteria set out in cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth). This clause has been subject to some amendments over time, which are not relevant for present purposes. Clause 187.233 of Schedule 2 to the Migration Regulations currently 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(12); and

(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

1. The applicant's ex-husband and daughter as secondary applicants were each required to satisfy the corresponding criteria in cl 187.311, which relevantly requires that the applicant "is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa".
2. The applicant's visa application related to the position of "Café or Restaurant Manager", which had been nominated in an application for approval by a sponsor named Rupinder Kaur. On 15 August 2016, approval of that nomination was refused by a delegate of the Minister. An invitation was given to the applicants to comment, which was not responded to. It is not necessary to detail these events further.
3. As a result, on 26 September 2016, a delegate of the Minister refused the applicants' visa applications on the basis that:

(a) the applicant was unable to meet the criteria in cl 187.233 because the nominated position to which her application related had not been approved by the Minister; and

(b) the applicant's ex-husband and daughter were unable to meet the criteria in cl 187.311 because they were not family members of a primary applicant who had been granted a subclass 187 visa.

Affirmation of the visa refusal by the Tribunal

1. On 3 October 2016, the applicants applied to the Tribunal for review of the delegate's decision to refuse their visa applications. There were a number of procedural steps taken following this application, such as an invitation to attend a hearing which was declined, which do not need to be detailed.
2. On 14 September 2018, while that application for review was being considered by the Tribunal, the Tribunal upheld the decision of the Minister's delegate to refuse to approve the sponsor's nomination.
3. On 17 September 2018, the Tribunal wrote to the applicants informing them of the refusal of approval of the sponsor's nomination, and inviting the applicants to provide a comment or response, as set out in more detail at [23] and [24] below. No response was provided to that letter.
4. On 3 October 2018, the Tribunal affirmed the delegate's decision to refuse the applicants' visa applications, on the basis that the position to which the primary application related was not the subject of an approved nomination, meaning that cl 187.233 was not met in relation to that application, and accordingly, the secondary applicants were not members of the family unit of a person who held the visa, meaning that their applications were unable to meet cl 187.311.

1. On 19 October 2018, the applicants filed an application for judicial review in the Federal Circuit Court claiming the following grounds of review, as detailed by the primary judge: PJ[18]:

[1] I never declined the invitation to attend a hearing. Such was acted on my behalf by the migration agent who also failed to respond or comment or request an extension of time to the invitation of 2 October 2018.

[2] The Tribunal failed to consider that on 24 August 2017 I applied for Regional Employer Nomination and I attach the evidence which was ignored by the Tribunal and until now there is no reply by the Department of Immigration concerning the new nomination submitted.

[3] I am a victim at the hand of my migration agent and the Department and the Tribunal because important information such as a fresh application for nomination was lodged and ignored also the opportunity to attend the interview was not passed on to me.

1. The application was set down for a show cause hearing under r 44.12 of the Federal Circuit Court Rules on 16 August 2021 to occur by video and/or audio link. The applicants failed to appear at the hearing on that date, and accordingly, the Federal Circuit Court dismissed the application for judicial review under r 13.03C(1)(c) of the Federal Circuit Court Rules.
2. On 25 August 2021, the applicants filed a reinstatement application, along with an affidavit of the first applicant dated 24 August 2021, in which she deposed that she had attempted to appear at the hearing remotely, but encountered difficulties in doing so.
3. On 19 April 2022, the reinstatement application was heard by the primary judge, with the first applicant appearing by telephone: PJ[22]. On 3 May 2022, the primary judge dismissed the reinstatement application. Her Honour found that the applicants had established a reasonably understandable explanation for their non-appearance at the hearing, that the delay in bringing the application was brief, and that these matters weighed in favour of the applicants: PJ[27]-[30]. Her Honour assessed the consideration of prejudice to the Minister to be a neutral factor, given that no specific prejudice was identified, but that there is a public interest in the finality of administrative decisions, and the absence of prejudice itself is not sufficient: PJ[31]-[33]. The primary judge considered that the grounds of review did not have any reasonably arguable prospect of success: PJ[35]-[43]. Decisively, her Honour further found that, even if the grounds of review had had some prospects of success, the grant of relief in the form of the remittal of the matter to the Tribunal for reconsideration would have been futile because of the absence of an approved sponsor, and relief would have been withheld on that basis, meaning that reinstatement of the application would serve no useful purpose: see PJ [44]-[47].

1. On 13 May 2022, the applicants filed in this Court an application for leave to appeal from the primary judge's decision to dismiss the reinstatement application, accompanied by a draft notice of appeal. The Minister and the applicant provided written submissions.
2. The applicants required leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), given that the primary judge's refusal of the reinstatement application was interlocutory in nature: SZHSY v Minister for Immigration and Citizenship [2007] FCA 793 at [1] (Stone J); Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [3] (Pagone J). The principles relating to the consideration of an application for leave to appeal under s 24(1A) are well settled, and relevantly include the following which I set out in Australian Broadcasting Corporation v Kane [2019] FCA 1716 at part of [30]:

(1) this Court must exercise the power to grant leave to appeal in a way that best promotes the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth), being to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [2]; Bellamy's Australia Limited v Basil [2019] FCAFC 147 at [6];

(2) the decision sought to be appealed from must be attended by sufficient doubt to warrant its reconsideration and, supposing the decision to be wrong, refusal of leave must be shown to be likely to result in substantial injustice, with these two factors being both cumulative and bearing upon one another: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Rush at [3]; and Bellamy's v Basil at [7];

1. The grounds of application in the application for leave to appeal, and the grounds of appeal in the draft notice of appeal, were identical in terms and stated as follows:

The FEDERAL CIRCUIT COURT failed to find that the tribunal's decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.

1. There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

1. Although this ground was not argued before the primary judge, it was convenient to assume in the applicants' favour that, in the event that leave to appeal was granted, the appellant would have been permitted to rely upon this new argument if it had merit.
2. The applicant's proposed ground of appeal above alleged that the Tribunal committed jurisdictional error by failing to comply with s 424A(1) of the Migration Act 1958 (Cth), which requires the Tribunal to, inter alia, provide to a review applicant particulars of any information which would be the reason or part of the reason for affirming the decision of the Minister, ensure the relevance of that information is understood, and invite the applicant to respond. However, s 424A(1) applied only to "Part 7-reviewable decisions" under the Migration Act, which did not include the delegate's decision to deny the applicants' visa application: Migration Act s 411(1).
3. The Minister indicated that he understood the proposed ground of appeal as intending to refer to s 359A(1), which is the equivalent provision in relation to "Part-5 reviewable decisions" under the Migration Act, defined at s 338. I assessed the application for leave to appeal on the same basis.
4. At the time of the Tribunal's decision, s 359A(1) of the Migration Act provided as follows:

(1) Subject to subsections (2) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

1. On 17 September 2018, the Tribunal wrote to the applicants (via their migration agent and authorised recipient) informing them of the particulars of information which it considered would, subject to the applicants' response, be the reason or part of the reason for affirming the delegate's decision, explaining its relevance, and inviting them to comment on or respond to that information by 2 October 2025, unless an extension was requested. No response was provided by the applicants.
2. The relevant particulars of information, and the Tribunal's explanation as to its relevance, were as follows:

• On 14 September 2018, the Tribunal affirmed the Department's decision to refuse the nomination made by Rupinder Kaur for Rajwinder Kaur to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111) through the Direct Entry stream.

The above information is relevant because one of the requirements for the grant of the Subclass 187 visa is that there is an approved nomination meeting the requirements of cl.187.233 for the position to which the application relates. On the basis of the Tribunal's decision, there is not an approved nomination. This would be a reason for affirming the decision under review.

1. The applicant did not provide any explanation for how she says this communication failed to comply with s 359A(1) in relation to the Tribunal's affirmation of the Department's decision to refuse the sponsor's nomination, and I was unable to otherwise discern how this would have been the case. The applicant did not point to any other information which she said the Tribunal should have provided to comply with s 359A(1), but failed to do so. As the Tribunal's affirmation of the refusal of the sponsor's nomination was ultimately the determinative reason for the Tribunal affirming the delegate's decision, I was unable to see how any such other information could exist.
2. Accordingly, I did not consider that the ground of appeal sought to be relied upon by the applicants had any reasonable prospect of success, such that the application for leave to appeal had to be dismissed.

1. I note, as a further matter, that even if the intended ground of appeal raised an arguable case that the Tribunal committed jurisdictional error, I would still not have concluded that the primary judgement was attended by any material degree of doubt. That is because any such finding would not have affected the primary judge's ultimate conclusion that, even if jurisdictional error was found, the remittal to the Tribunal would be futile, and the reinstatement application failed on that basis: see PJ[44]-[47], referred to at [15] above.

1. The written submissions filed by the applicant addressed a range of other matters, including:

(a) the lack of clear advice which she received from her migration agents during the processes which preceded the decisions of the Minister's delegate and the Tribunal;

(b) her good character and qualifications; and

(c) the difficulties she is facing which would be exacerbated by her removal from Australia.

1. These submissions did not assist in establishing the merits of the proposed ground of appeal. They also did not address the futility of any relief which could be granted in the event that the application for leave to appeal, and thereafter the appeal, were to succeed. In any event, I was not satisfied that the complaints made by the applicant about any of the conduct of any migration agent rises to the necessary level of fraud directed to the relevant decision-maker: Maharjan v Minister for Immigration and Border Protection and Another [2017] FCAFC 213; 258 FCR 1 at [102]- [103] (Gilmour, Logan and Mortimer JJ).

1. For the reasons set out above, the appeal which the applicants sought to bring was without merit and could not succeed. The application for leave to appeal was accordingly dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.