Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1118

1. On 3 July 2025, the Applicant lodged late, pursuant to r 21.02 of the Federal Circuit and Family Court of Australia (Div 2) (General Federal Law) Rules 2021 (Cth) (Rules), an application for review (Review Application) of a decision of a Registrar of this Court dated 23 June 2025 (Registrar's Decision).
2. The Registrar's Decision dismissed the Applicant's application for judicial review of a decision of the Administrative Review Tribunal (Tribunal), pursuant to r 13.13(a) of the Rules.
3. The Tribunal's decision affirmed a decision of a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (as the Minister was then called) (Delegate) made on 20 May 2020, to refuse the Applicant a Regional Employer Nomination (Permanent) Subclass 187 Visa.
4. Pursuant to rule 21.04 of the Rules, this review is a hearing de novo.[1]
5. However, the Court must first determine whether to grant the Applicant an extension of time to file the Review Application. That is because the Review Application was filed 3 days late.
6. For the reasons that follow, no extension of time is granted. Consequently, the Review Application is dismissed.

1. On 4 May 2017, the Applicant, a citizen of India, applied for a Regional Employer Nomination (Class RN) (Subclass 187) visa (Subclass 187 Visa). The relevant nominating employer was "Vihaan Enterprises Pty Ltd" (Sponsor).[2] The Nominated occupation was a position of hairdresser.[3]
2. In support of her application, the Applicant provided her employment contract[4], and various course certificates and personal identifiers.[5] The Applicant was assisted in her application by a migration agent.[6]
3. On 24 August 2018, the Delegate wrote to the Applicant inviting her to comment on information that the Sponsor's nomination had been refused.[7] The Applicant did not respond.[8]
4. On 28 September 2018, the Delegate refused to grant the Applicant the visa. The Delegate found that the Applicant was not the subject of an approved nomination, and therefore she did not meet cl 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[9] That section provides (emphasis added):

187.233

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

(a) nominated in an application for approval that seeks to meet the requirements of:

(i) sub paragraph 5.19(41(h)(ii): or

(ii) sub regulation 5.19(4) as in force before 1 July 2012; and

(b) in relation to which the declaration mentioned in paragraph 1114CQ)(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 was the nominator in the application for approval.

(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 no more than 6 months after the Minister approved the nomination

1. On 15 October 2018, the Applicant applied to the Tribunal for review.[10]
2. On 2 April 2020, the Tribunal issued an invitation to comment on adverse information by 16 April 2020, pursuant to s 359A of the Migration Act 1958 (Cth) (Act). That information advised the Applicant that the nomination made by the Sponsor in respect of the Applicant was refused by the Delegate, that the Sponsor applied for review of that decision, and the Tribunal determined that it did not have jurisdiction. The consequence of this is the Sponsor's Application for the nominated position had not been approved. The Applicant was informed that this may result in the Tribunal affirming the refusal of the Visa Application (s 359A Letter).[11]
3. On 14 April 2020, the Applicant sought an extension from the Tribunal to reply to its s359A Letter, which the Tribunal granted until 30 April 2020.[12]
4. On 29 April 2020, the Applicant requested the Tribunal for further time to respond, however the Tribunal refused this request on the basis that the nomination was not approved, and cl 187.233 could not be satisfied by a later nomination by a different employer.[13]
5. On 30 April 2020, the Tribunal invited the Applicant to appear before it on 20 May 2020 by telephone.[14] The Applicant responded to the hearing invitation.[15]
6. On 20 May 2020, the Applicant attended the scheduled hearing.[16] At the conclusion of the hearing, the Tribunal member made an oral decision, affirming the Delegate's decision.[17]
7. On 8 July 2020, the Tribunal provided written reasons, finding that the visa application could not succeed without an approved nomination and that the Applicant did not satisfy the criteria for granting a Subclass 187 Visa.[18]
8. The above factual background was confirmed with the Applicant when she appeared in Court assisted by an interpreter on 17 July 2025.

1. On 17 June 2020, the Applicant filed an application (Originating Application) with this Court under s 476 of the Act, seeking judicial review of the Tribunal's decision. The Applicant seeks Orders that the Tribunal's decision be quashed, and the matter be remitted back to the Tribunal for reconsideration according to law.
2. The grounds from the Applicant's Originating Application are as follows (reproduced without alteration):
   1. The decision made by member of AAT contains jurisdictional error.
   2. The Decision is unjustified
   3. The migration decision under review is not a 'privative clause decision' within the meaning given by subsection 474 (2) of the Migration Act 1958.
3. On 10 July 2020, the First Respondent (Minister) filed a response which sought, that the matter be summarily dismissed, pursuant to the then Federal Circuit Court rules.
4. On 4 November 2020, a bundle of documents (Court Book) was filed by the Minister.
5. On 28 March 2025, the Minister filed an amended response which sought that the application be dismissed, pursuant to r 13.13 of the Rules.

1. On 20 May 2025, a Registrar of this Court issued an order programming the matter for hearing on 23 June 2025, to determine the Minister's summary dismissal application. The order directed:

(a) the Minister to file any submissions and evidence in support of the application by 3 June 2025, and

(b) the Applicant to file any submissions, amended application and evidence in response by 17 June 2025.

1. On 3 June 2025, the Minister filed its submissions in compliance with the registrar's orders.
2. On 3 June 2025, the Minister filed an Affidavit, deposed by Ms Kristina Petrovski of Sparke Helmore Lawyers, which included:

(a) an extract of the Integrated Client Services Environment (ICSE) records in respect of the Applicant's nomination,

(b) Applicant's Form 80, and

(c) Applicant's Declaration Form - Paying for visa sponsorship

1. The Applicant did not, prior to the summary dismissal hearing, file or serve written submissions or evidence to support the grounds for review. On 17 July 2025 the Court confirmed with the Applicant that she had not filed any additional materials. The Court is satisfied the Applicant had every opportunity to do so.
2. On 20 June 2025, the Minister filed an Affidavit, deposed by Ms Kristina Petrovski of Sparke Helmore Lawyers, which included an ASIC Company Summary extract of Vihaan Enterprises Pty Ltd.
3. On 23 June 2025, the summary dismissal hearing took place, and the Registrar decided ex tempore to summarily dismiss the Applicant's judicial review application pursuant to r 13.13(a) (Registrar Decision) because the Registrar was satisfied the Applicant's grounds for judicial review did not have a reasonable prospect of success; noting that the Tribunal made the only decision open to it on the evidence before it.

1. On 3 July 2025, the Applicant lodged the Review Application (3 days outside of the time prescribed by the Court to seek such a review). The orders sought by the Applicant in the Review Application were (reproduced without alteration):

1. An order quashing or setting aside the decision.

2. An order that the matter be remitted to the Administrative Review Tribunal for further consideration.

3. Costs.

4. Such further or other orders as to the Court seem fit.

1. The matter was allocated to this Court as presently constituted on 9 July 2025. On 10 July 2025 the matter was listed for hearing on 17 July 2025 to determine the Review Application.
2. On 10 July 2025, this Court informed the parties that the Review Application was made 3 days outside of the time prescribed by the Rules to seek such a review. The parties were advised to file written submissions addressing the Court on the factors relevant in the exercise of the Court's discretion to extend the time for filing of the Review Application by 15 July 2025.
3. The Applicant did not take the opportunity to file any further written submissions. On 17 July 2025 the Court confirmed with the Applicant that she had not filed any written submissions. On 15 July 2025, the Minister filed written submission addressing the Review Application.

1. On 17 July 2025, the review application was heard by this Court. The:

(a) Applicant appeared in person assisted by an interpreter in the Punjabi language.

(b) Minister was represented by Amron Rath, solicitor at Sparke Helmore.

1. At the commencement of the hearing, the Court as presently constituted explained to the Applicant that the Court cannot set aside the decision of the Tribunal unless there is a jurisdictional error in the decision. The main categories of jurisdictional error were explained.
2. It was further explained to the Applicant that before the Court could consider the issue of jurisdictional error, it was necessary to determine whether to grant the Applicant an extension of time to file the review application.
3. The Applicant could not recall seeing the email sent to the parties on 10 July 2025 which explained the principles relevant to granting an extension of time for filing a Review Application. Consequently, at the hearing on 17 July 2025, the Applicant was provided with a physical copy of the email. The Court repeated those principles and invited the Applicant to address about each of the considerations relevant to an extension of time.
4. The Applicant demonstrated a command of the English language. During the proceedings she preferred to answer questions or make submissions in the English language. Notwithstanding, to the extent required by the Applicant, the explanations provided to the Applicant were interpreted. Based on the Applicant's responses, the Court is confident the Applicant properly comprehended the scope and purpose of the hearing.
5. Noting that the Applicant was unrepresented, the Court gave the Applicant an opportunity to elaborate on her grounds of review and to outline any other concerns she might have with the Tribunal's decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
6. The Minister relied upon the written submissions filed in the matter.

1. s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) permits a party to a proceeding in which a Delegate has exercised any of the powers of the Court to apply to the Court for review of that exercise of power. Such an application must be made within the time prescribed by the Rules or within any further time allowed in accordance with the Rules.
2. Rule 21.02 of the Rules states:

(1) For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.

(2) The time prescribed by subrule (1) may be extended in a proceeding:

(a) by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or

(b) with the consent of the parties to the proceeding.

1. The Registrar dismissed the Applicant's Reinstatement Application on 23 June 2025. Pursuant to r 21.02 of the Rules, the Applicants had until 30 June 2025 to lodge their Review Application. As they did not do so until 3 July 2025, the Applicants are 3 days out of time.
2. Rule 21.02(2)(b) allows the Court to extend the time prescribed with the consent of the parties to the proceeding. The Minister does not consent.
3. It remains to be seen whether the Court will extend the time prescribed on any terms the Court thinks fit.
4. The broad discretion to extend time in r 21.02(2) of the Rules should be exercised in the context of the well-established factors guiding decisions whether to extend time in cases such as Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344 and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [12]. These factors are:

(a) the extent of the delay,

(b) the explanation for the delay,

(c) prejudice to the respondent due to the delay, and

(d) the merits of the proposed application.

1. When determining if a proposed application has "merit" or an "arguable prospect of success", the Court will do so at a "reasonably impressionistic level".[19] Importantly, an Applicant need therefore only identify an "arguable case" (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted.[20]
2. The discretionary power to extend time is broad and there will be circumstances where it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. In Tu'uta Katoa at [18], the High Court provided the following examples of such circumstances (references omitted):

For example, if the delay is lengthy and unexplained, the applicant may be required to show that the case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion.

1. At the hearing, the Applicant was invited to address each of the factors relevant to granting an extension of time for the Review Application. The Applicant was also asked to identify why they believe the Tribunal made a jurisdictional error.
2. The Minister made submissions consistent with the written submissions filed by the Minister on 15 July 2025 and relied on the submissions filed on 3 June 2025, when addressing the merits of the Review Application.
3. The Court incorporates (without repetition) paragraphs 10-18 of the Minister's outline of submissions filed 15 July 2025 and paragraphs 21-26 of the submissions filed 3 June 2025.

1. Before this Court, the Applicant accepted that the delay in lodging the Review Application was 3 days.
2. The delay is modest. However, the efficient administration of justice necessitates the observance of time limits. For this reason, this factor weighs against granting the Applicant an extension of time.

1. At the hearing, the Applicant sought to justify her late filing on the basis that she was not aware of the 7-day timeframe within which to seek a review. The Applicant said she understood that the usual time was 14-days. The Applicant said that once she found out about the relevant timeframe, she filed a review with the assistance of a friend.
2. The Court took the Applicant to her Review Application, specifically to the section that stated the Applicant completed the Review Application herself. The Applicant confirmed that she had assistance completing the document. The Applicant said that she was also not feeling well during the relevant time period. The Applicant also said she "had a lot going on", she said she found out that she was pregnant, was told she had to move house, and she was also busy working during that time period.
3. The Court notes that the Court's email of 23 June 2025 did not explicitly mention that the Applicant had only seven days to seek review of the Registrar's decision. Although ignorance of the law is not a reasonable excuse, this omission may have contributed to the Applicant's confusion. That omission may merit attention by those responsible for court practice rules to ensure unrepresented litigants receive clear guidance about applicable deadlines.
4. The Court acknowledges that the Applicant is unrepresented. However, the Applicant's explanation remains unsatisfactory. The onus remained on the Applicant, given her desire to engage with the judicial review process, to ensure that she filed her application within the set timeframe. If she was unsure about the process, she could have sought professional advice. However, the Applicant made no inquiries with the Court or, it would appear, any legal service to confirm the applicable time limits or to obtain competent legal advice.
5. This factor weighs against granting the Applicant an extension of time.

1. The Minister accepts that there is no substantial prejudice that could not be remedied by a costs order. However, the absence of prejudice is not, by itself, a sufficient reason to grant the Applicant an extension of time.
2. This factor is a neutral consideration in deciding whether to grant the Applicant an extension of time. The Minister conceded the same before the Court on 17 July 2025.

1. The final and most significant factor in determining whether to grant the Applicant an extension of time to file the Review Application is the merits of the review itself.
2. At the hearing, the Court took the Applicant to the grounds of review contained within her application.

*** The decision made by member of AAT contains jurisdictional error.**

1. The ground is not particularised.
2. At the hearing, the Court asked the Applicant what she meant by this ground. The Applicant said that the Tribunal erred by finding that the company was not registered. The Court asked the Applicant if she knew that the sponsor was not approved. The Applicant contended that the nomination was approved. The Court asked the Applicant if, at the time of the Delegate's decision, the nomination had been approved. The Applicant continue to contend that the nomination had been approved.
3. The contention advanced by the Applicant is factually wrong. The Court notes that the Applicant did not file any evidence in support of her claim that the nomination had been approved before the Tribunal. In any case the submissions made by the Applicant go to the merits of the claim for a Visa, which this Court cannot review.
4. Ground 1 does not establish a reasonably arguable case of jurisdictional error on behalf of the Tribunal. For that reason, ground 1 is dismissed.

1. The ground is not particularised.
2. At the hearing, the Court asked the Applicant what she meant by this ground. The Applicant said that she came to Australia in 2019 and she met all the requirements of skills, training and English proficiency. The Court apprehended that the Applicant was contending that she did all that she believed was necessary for the Visa and that the failure of the employer's nomination was not her fault. That may be true, but it does not change the fact that at the time the Delegate made its decision, the Applicant did not have an approved nominator.
3. Further, to the extent that the Applicant is contending that the decision was unreasonable in a Li sense that contention must fail. The only evidence before the Tribunal was that the employer nomination had been refused. Consequently, the Tribunal made the only decision open to it to make. If the matter was to be remitted to the Tribunal, the Tribunal would make the same decision today.
4. Ground 2 does not establish a reasonably arguable case of jurisdictional error on behalf of the Tribunal. For that reason, ground 2 is dismissed.

*** The migration decision under review is not a 'privative clause decision' within the meaning given by subsection 474 (2) of the Migration Act 1958.**

1. The ground is not particularised.
2. At the hearing, the Applicant was asked if she had anything to say about ground 3. The Applicant replied "No".
3. Ground 3 does not establish a reasonably arguable case of jurisdictional error on behalf of the Tribunal.

Any other matters of merit relating to grounds of review

1. At the hearing, the Applicant was given a final opportunity to say something. The Applicant said, "its ok you can make your decision".
2. Mindful of the Court's obligations towards unrepresented litigants as outlined in MZAIB at [59]-[77], [100] and [112]-[113], the Court has scrutinised the application, the materials before the Tribunal and the Tribunal's decision to identify any jurisdictional error. The Court has also read the Applicant's grounds as broadly as possible and remain alive to the possibility of jurisdictional error on the Tribunal's part. Nevertheless, the Court is of the view that error has not been disclosed on the Tribunal's part, and for the following reasons, the Court is not persuaded that a reasonably arguable case of jurisdictional error arises out of the substantive application.

1. Taking into account all of the considerations above, particularly the absence of a satisfactory explanation for the delay in filing the Review Application, and the lack of any reasonably arguable case of jurisdictional error on the part of the Tribunal, the Court is not satisfied that it is in the interests of the administration of justice that time be extended in this matter.
2. Accordingly, the application is dismissed. The Court will now hear the parties on costs.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of Judge Johns.

[1] see also Bechara v Bates [2021] FCFAFC 34; [2021] FCAFC 34; (2021) 286 FCR 166 at [1]- [7]

[19] MZABP v Minister for Immigration & Border Protection [2015] FCA 1392.

[20] MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 ("MZAIB").