Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1303

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. This decision is about whether Amarjeet Kaur should be granted an extension of time to seek a review of a decision of a Registrar of this Court.
2. In short, the background to the matter is as follows:

(a) a delegate of the then Department of Immigration and Border Protection refused Ms Kaur a Regional Sponsored Migration Scheme visa because, at the time of the decision, the Ms Kaur did not have an approved nominating employer; a fact fatal to the application for her visa, and one that could never be cured;

(b) the Tribunal affirmed a decision of the Delegate; and

(c) the Registrar on 22 April 2025 dismissed Ms Kaur's application for judicial review of a decision of the Administrative Review Tribunal. The Registrar was satisfied the application to this Court had no reasonably prospects of success.

1. This review is a hearing de novo.[1] That is to say, this decision is not concerned with correcting any error on behalf of the Registrar but is "a fresh hearing which may result in a different order having the effect of undoing or revoking the decision of the [R]egistrar."[2]
2. However, the Court must first determine whether to grant Ms Kaur an extension of time to file the review of the Registrar's decision. That is because the present application was filed 16 days late.
3. For the reasons that follow, the application for an extension of time is dismissed. Consequently, there is no application before the Court to review the decision of the Registrar. That means the decision of the Registrar (to dismiss the Applicant's application for judicial review of a decision of the Tribunal) prevails.

1. On 10 June 2009, Ms Kaur (Primary Applicant) and her husband Harinder Singh (Second Applicant), citizens of India, arrived in Australia.[3] On 18 April 2015, the Primary Applicant had a child Avnoor Kaur Ladher, [4] who was the Third Applicant before being removed from these proceedings.
2. On 6 June 2017, the Primary Applicant lodged a combined application for a Regional Employer Nomination (Subclass 187) visa (Nomination Visa) under the Direct Entry stream. The Applicant's husband, Mr Singh, and her daughter, Ms Ladher, were named as secondary applicants.[5]
3. The nominated position was that of Vocational Education Teacher;[6] with Dynamic Education Group Pty Ltd, trading as Keystone College of Business and Technology (Nominated Employer).[7]
4. Also on 6 June 2017, the Delegate wrote to the Applicants (Invitation to Comment) noting that the nomination lodged by the Nominated Employer had been refused.[8] The correspondence further noted that "there are two options you can now take in relation to this decision" [9]
   1. Withdrawing your application

As there is no possibility of your application being approved you may wish to withdraw your application, if so, you must advise the department in writing. By withdrawing your application, you give up any rights to apply for a merits review at the Administrative Appeals Tribunal. A request for a refund can be submitted but will only be granted in very limited circumstances.

1. Refusal of application

If you do not respond to this letter within 28 days and the application has not been withdrawn, then the application will be refused. If your application is refused you are entitled to apply for a merits review of this decision with the Administrative Appeals Tribunal. A request for a refund will not be approved.

1. The Applicant was given 28 days to respond to the Invitation to Comment. The Applicants did not respond to the Invitation to Comment.
2. On 6 July 2017, the Delegate refused the visa application.[10] The Decision Record[11] discloses that the Delegate found that "the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa [had] not been satisfied by Ms Kaur.[12] The Applicant did not satisfy the criteria because she was not the subject of an approved nomination under cl.187.233(3) of the Regulations.[13] For completeness the Delegate also assessed the visa application against the Temporary Residence Transition stream and Agreement stream, but both were found to be inapplicable.[14]
3. Because the Primary Applicant was not granted a visa, the Secondary Applicants could not be granted a visa.[15]
4. On 13 July 2017, the Applicants applied to the Tribunal seeking a review of the Delegate's decision. [16] The Applicants nominated a migration agent (Jenelle Barraclough) to act on their behalf in the review proceedings.
5. On 15 August 2019, the Tribunal invited the Applicants to comment on or respond to information (Invitation to Comment).[17] The Invitation to Comment noted that the nomination by the Nominating Employer had been refused, and a review of that refusal had been withdrawn by the Nominating Employer on 9 August 2019.[18] The Tribunal invited the Applicants to comment on this information by 29 August 2019.[19]
6. On 29 August 2019, Mrs Barraclough responded to the Invitation Comment as follows,

In reference to the above appeal, we have spoken to our client in relation to this invitation to comment and that the appeal cannot be successful now the Nomination appeal has been withdrawn.

Mrs Amarjeet Kaur has advised that she does not wish to withdraw her appeal and wishes to proceed with the appeal.[20]

1. On 30 August 2019, the Tribunal invited the Applicants to attend a hearing scheduled for 13 September 2019[21] (later rescheduled to 7 October 2019).[22]
2. On 7 October 2019, the Applicants attended the scheduled hearing[23] without the assistance of their migration agent.[24] At the hearing, the Tribunal Member explained that if Ms Kaur was not the subject of an approved nomination, the Tribunal would be legally required to affirm the Delegate's decision.[25] In response, Ms Kaur requested a 60-day adjournment to secure a new sponsor.[26]
3. On 16 October 2019, the Tribunal affirmed the Delegate's decision to refuse the Applicants their visa.[27] It found that Ms Kaur was not the subject of an approved nomination and, accordingly, cl.187.233 was not satisfied.[28] The Tribunal considered whether to "adjourn the review to allow the [A]pplicant additional time to find another sponsor"; they noted that the Tribunal was not bound by any such obligation, and thus sought to resolve this question by asking whether "evidence that the [A]pplicant meets cl. 187.233 [was] likely to be forthcoming".[29] Ultimately, because the requirement imposed by cl. 187.233 "is not able to be satisfied by a later nomination of a position made by a different employer", the Tribunal ruled it was clear, based on the evidence before it, that it was "unlikely [that] the applicant [would] be able to provide evidence that she [was] subject to an approved business nomination" as required; the adjournment was thus refused.[30]

1. On 4 November 2019, the Applicants filed an application (Originating Application) with this Court under s 476 of the Act, seeking judicial review of the Tribunal's decision.
2. The Originating Application sought, amongst other orders, a writ of certiorari quashing the Tribunal's decision, and a writ of mandamus directing the Tribunal to redetermine the Application according to law. The Originating Application raised two grounds of review, which are as follows (reproduced without alteration):
   1. The Second Respondent (Administrative Appeals Tribunal) failed to accord to the applicants' procedural fairness and natural justice.

Particulars

1. The Tribunal's decision was made in circumstances where there occurred significant breaches of rules of natural justice, including the applicant's most fundamental right to procedural fairness, both at common law and under section 360 of the Migration Act 1958 (Act) being breaches constituting jurisdictional error.

2. Applying Minister for Immigration and Border Protection v Haq [2019] FCAFC 7, the Tribunal's decision was without "an intelligible justification"

3. The applicants request for 60 days to find another nominator was a reasonable request. It was not an open-ended request.

4. The nominated position of Vocational Education Teacher was in the regional area and the nominator Dynamic Education Group did initially seek review of the nomination refusal which it subsequently withdrew for reason not known to the applicants.

5. The Tribunal's decision in the case was in the circumstances legally unreasonable. The request for 60 days was a reasonable time for the Applicant to pursue that prospective employment with the same nominator Dynamic Education.

6. The Tribunal could have afforded the applicants an opportunity to bring forward evidence from Dynamic Education Group that might have advanced applicants' application for postponement of the Tribunal's decision. In the circumstances it was not fair and just to the applicants.

7. The Tribunal failed to consider Ms Kaur was a litigant in person and did not understand it would be necessary for her to put on the information to support her request for adjournment.

8. The adverse outcome in the Tribunal was significant one for Kaur's family. It affected Ms Kaur' s ability to work and perhaps whether the family could continue to live in Australia.

9. The Tribunal's exercise of the decision under s363 (l)(b) of the Migration Act 1958 (the Act) was unreasonable applying the case of MIAC v Xijuan Li and Anor [2013] HCA 18; (2013) 249 CLR 332 (Li) and Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 (SZVFW Full Court).

10. That decision of the Second Respondent (Administrative Appeals Tribunal) is affected by jurisdictional error on the basis that the Tribunal breached its obligations pursuant to section 348 and 349 of the Migration Act 1958 (Act) by not considering the applicant's review application.

Particulars

1. In reaching its decision the Tribunal failed to "review" the Applicants application.
2. In reviewing a Part 5 - reviewable decision, the AAT empowered to exercise all the powers and discretion that are conferred by the Act on the primary decision maker. The legislation does not expressly impose any particular period within which the AAT is to make a decision.
3. There is an express power conferred upon the AAT to adjourn the review from time to time (s 363(1)(b)).
4. The Tribunal failed to consider the Applicants' eligibility under other categories of subclass 187 visa.

1. The Originating Application was signed by the Primary Applicant. However, before the Court on 7 August 2025, the Primary Applicant explained that she did not draft the Originating Application.
2. On 26 November 2019, the First Respondent (Minister) filed a response and opposed the making of the orders sought by the Applicants. The Minister submitted that the Originating Application failed to establish any jurisdictional error on the part of the Tribunal.
3. On 11 March 2025, the Minister filed an amended response which sought, among other orders, that the matter be summarily dismissed pursuant to r 13.13 of the Rules.

1. On 5 March 2025, a Registrar of this Court issued an order programming the matter for hearing to determine the Minister's summary dismissal application (Registrar's Order). The Registrar's Order directed:

(a) the Minister to file any submissions in support of the summary dismissal application by 19 March 2025, and

(b) the Applicant to file any submissions in response by 2 April 2025.

1. On 18 March 2025, the Minister complied with the Registrar's Order by filing submissions.
2. On 1 April 2025, the Applicants complied with the Registrar's Order by filing submissions.
3. On 22 April 2025, the summary dismissal hearing took place. The Registrar summarily dismissed the Applicants' judicial review application pursuant to r 13.13 on the basis that it had no reasonable prospects of success (Registrar's Dismissal Decision).
4. On 9 May 2025, the Applicant sought written reasons for the Registrar's Dismissal Decision.

1. On 15 May 2025, the Applicants lodged the Review Application (i.e. 23 days after the Registrar's Dismissal Decision).
2. The orders sought by the Applicant in the Review Application were (reproduced without alteration):
   1. That the Order of the Honourable Judicial Registrar be reviewed, and the matter be remitted to the Administrative Appeals Tribunal for de novo proceedings in accordance with law.
   2. The First Respondent be ordered to pay the Applicants' cost of the review as agreed or assessed and be ordered to pay the Applicants' filing fee.
   3. That the time to lodge the Review the Registrar's decision be extended.
   4. The matter be listed for Final Hearing before a Judge on a date to be advised.
3. The Review Application was signed by the Primary Applicant. However, in the footer it was recorded that it had been "Prepared by Imran Warraich" from "HUK Legal Services".
4. The Primary Applicant also filed an Affidavit witnessed by Imran Warraich in which she sought to explain the late lodgement by deposing that she "couldn't lodge the review within 7 days due to unavoidable personal circumstances beyond [her] ostensible control."
5. The matter was allocated to the Court as presently constituted on 26 May 2025. On the next day, the Court listed the matter for hearing on 3 June 2025 to determine the Review Application.
6. On 28 May 2025, the Court raised with the parties the fact that the Review Application was filed outside of the time prescribed by the Rules. The parties were advised that, should the Minister not consent to the extension of time, they should be prepared to address the Court on the factors relevant in the exercise of the Court's discretion to extend the time for filing of the Review Application. The parties were also invited to file written submissions addressing those factors ahead of the hearing.
7. On 30 May 2025, the Minister filed written submissions. The Minister opposed granting the Applicants an extension of time.
8. On 1 June 2025 (i.e. 2 days before the scheduled hearing) Imran Warraich of Huk Legal Services purported to file a Notice of Intention to Withdraw as the Applicants' solicitor. Because Mr Warraich had not given the Applicants 7 days' notice the Court did not give Mr Warraich leave to withdraw. The Court required him to attend the hearing.

Hearing of the Review Application on 3 June 2025 (Part Heard)

1. On 3 June 2025, the hearing of the Review Application took place:

(a) the Primary Applicant, Ms Kaur, appeared for herself and the Second Applicant and in her capacity as the litigation guardian for the Third Applicant;

(b) the Minister was represented by Mr Orchard of Sparke Helmore Lawyers; and

(c) Mr Warraich did not appear, despite being required by the Court to do so.

1. In fairness to the Applicants, the hearing was adjourned to 13 June 2025, due to Mr Warraich's non-appearance. The Applicants were given more time to obtain alternative legal representation and to file further submissions and evidence.
2. The Court was subsequently informed that the Third Applicant had been granted Australian citizenship and, consequently ordered that the Third Applicant to be removed from the proceedings.
3. On 3 June 2025, the Court made the following Orders:

(1) the name of the First Respondent be amended to "Minister for Immigration and

Citizenship";

(2) Ms Avnoor Kaur Ladher be removed as an applicant in these proceedings;

(3) the hearing be listed at 10:00 am (Melbourne time) on 13 June 2025, in-person, at the

Melbourne Registry of this Court;

(4) by 10 June 2025 the Applicant file in the Court and serve on the First Respondent any evidence, documents, and submissions in support of her application;

(5) by 10 June 2025, Mr Imran Warraich file in the Court and serve on the parties, any affidavit material, documents, evidence, and written submissions addressing why an order for costs should not be made against him pursuant to s 486F of the Migration Act 1958 (Cth); and

(6) by 12 June 2025, the First Respondent file in the Court and serve on the parties any materials in reply.

1. On 3 June 2025, the Court wrote to Mr Warraich,

Dear Mr Warraich,

Matter MLG3799/2019 proceeded today in your absence; you having only advised the Court (discourteously) overnight that you were overseas.

At the hearing Ms Kaur explained that:

1. She first contacted you on 12 May 2025.

2. You agreed to prepare the application to review of the Registrar's decision (noting that any such application was already out of time) in exchange for a payment of $500.

3. On 2 May 2025 Ms Kaur made an initial payment to you by way of PayID in the amount of $250.

4. You attended to the drafting of the application and the Applicant's affidavit.

5. You drafted the statement "I couldn't lodge the review within 7 days due to unavoidable personal circumstances beyond my ostensible control". Ms Kaur did not give you those instructions.

6. The real reason for her delay in filing was that she was not aware of the 7-day time limit. She thought she had 28 days.

7. She first learned that you would not be acting for her on Sunday, 1 June 2025 (i.e. two days before the hearing).

Having regard to the decisions of the Delegate, the AAT and the Registrar, and noting that Ms Kaur never had an approved employer nomination, it is difficult to understand how any of those decisions are affected by error.

You must have given proper consideration to the prospects of success of Ms Kaur's migration matter.

You will be aware that section 486E of the Migration Act 1958 provides that,

1. A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:
   1. the migration litigation has no reasonable prospect of success; and
   2. either:

      1. the person does not give proper consideration to the prospects of success of the migration litigation; or

      2. a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.

In drafting the Applicant's out of time review application (where the substantive application for a visa was never supported by an approved employer nomination) and receiving payment for it, his Honour is concerned that you encouraged Ms Kaur to continue migration litigation that has no reasonable prospects of success.

Consequently, his Honour requires that, by 4pm on Tuesday, 10 June 2025 you must file in the Court and serve on all parties any Affidavit material, evidence, documents, and submissions that address why costs should not be awarded against you pursuant to section 486F of the Migration Act 1958.

The matter has been adjourned to 10.00 am on Friday, 13 June 2025.

Because you have not yet been given leave to withdraw, you must attend. If you cannot attend in person, you must make yourself available to attend by video.

1. On 3 June 2025, after the hearing, the Court was advised that a law practice manager had been appointed in respect of Huk Legal Services by the Victorian Legal Services Board and Commissioner in accordance with section 334 of schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic), and that Mr Imran Warraich's Practising Certificate had been cancelled.
2. On 11 June 2025, the hearing was rescheduled for 7 August 2025, ultimately, at 2:00 pm.
3. None of the parties nor Mr. Warraich filed submissions or evidence as directed by the Orders made on 3 June 2025 and reiterated in the Court's email on 3 June 2025.
4. On 30 July 2025, an Affidavit of Service was filed by Amron Rath of Sparke Helmore Lawyers.

Hearing of the Review Application on 7 August 2025

1. On 7 August 2025, the hearing of the Review Application took place. The:

(a) Primary Applicant, Ms Kaur, appeared for herself and the Second Applicant; and

(b) Minister was represented by Samantha Liddy, solicitor at Sparke Helmore Lawyers

(a) explained to the Primary Applicant that:

(i) 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;

(ii) before the Court could consider the issue of jurisdictional error, it was necessary to determine whether to grant the Applicants an extension of time to file the review application; and

(b) explained the principles relevant to granting an extension of time for filing a Review Application and invited the Primary Applicant to address the Court about each of the considerations relevant to an extension of time.

1. Noting that the Primary Applicant was unrepresented, the Court gave the Primary 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.[31]
2. Ms Liddy made submissions on behalf of the Minister in reliance upon the written submissions filed on 30 May 2025. The Court incorporates (without repetition) paragraphs 19 to 36 of the Minister's outline of submissions filed 30 May 2025.

1. Section 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 Applicants' Reinstatement Application on 22 April 2025. Pursuant to r 21.02 of the Rules, the Applicants had until 29 April 2025 to lodge their Review Application. As they did not do so until 15 May 2025, the Applicants are 16 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[32] and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[33] 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".[34] 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.[35]
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. Before this Court, the Primary Applicant accepted that the delay in lodging the Review Application was 16 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 Applicants an extension of time.

1. Before the Court, the Applicant explained she was unaware of the time frame, and that by the time she first made contact with Mr Warriach on 12 May 2025, the application was already late.
2. The Court notes that the Court's email of 22 April 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 Primary 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.
3. The Court acknowledges that the Applicants are unrepresented. However, the Primary Applicant's explanation remains unsatisfactory. Given the Primary Applicant's desire to engage with the judicial review process, the onus remained on her to ensure that she filed her application within the set timeframe. If she was unsure about the process, she could have sought professional advice in a timelier manner after the Registrar's summary dismissal by making inquiries with the Court or any legal service to confirm the applicable time limits. This factor weighs against granting the Applicants 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 Applicants an extension of time.[36]
2. This factor is a neutral consideration in deciding whether to grant the Applicants an extension of time.

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 proposed application.
2. At the hearing on 7 August 2025, the Court directed the Primary Applicant to the two grounds of review outlined in the Originating Application; these are reproduced in paragraph [20] of this decision. The Primary Applicant was asked what she meant by each of the grounds. She had nothing to say.
3. In relation to the grounds in the Originating Application, the registrar stated in the Registrar's Dismissal Decision at [29]-[61]:

Was the applicant the subject of an approved nomination?

1. The applicants' grounds do not raise the issue of whether the Tribunal erred in finding that the applicants did not satisfy cl 187.233.

2. The applicants' written submissions contend, however, that the applicants have provided evidence of their nomination and state that the first applicant has complied with the requirement of reg 5.19 of the Regulations (which deals with the approval of nominations) by ensuring that the nomination was lodged.

3. While it is correct that the applicants submitted evidence of the nomination application, this submission misconceives the criterion in cl 187.233 which requires not only that the position to which the application relates has been nominated, but also that the nomination has been approved.

4. I explained this to the first applicant and invited her to comment on this. The first applicant agreed with this proposition but asserted that the employer did not notify her of their intention to not pursue the review.

5. It is clear that the nomination was not approved and no issue arises in that regard in the Tribunal's decision.

Ground one

1. Ground one alleges that the Tribunal failed to accord the applicants procedural fairness and natural justice.
2. From the particulars to ground one, it is apparent that the applicants contend that the Tribunal erred in refusing to adjourn the proceedings to afford the first applicant an opportunity to seek a nomination from another employer. The first applicant agreed with that proposition.
3. The Tribunal has the discretion to adjourn review proceedings: s 363(1)(b). It is a basic and uncontroversial principle of administrative law that decision makers must exercise discretionary powers reasonably: Li [2013] HCA 18 at [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ, and [88] per Gageler J.
4. The power in s 363(1) is expressly conferred on the Tribunal for the purposes of the review it is undertaking, and it must be exercised consistently with that purpose and the obligation to offer a meaningful hearing to the applicant: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [53].
5. In this matter, the purpose of the review was to determine whether the applicant satisfied cl 187.233.
6. That clause required, inter alia, that the position to which the application relates is the position nominated in an application for approval and the Minister has approved that nomination.
7. The mechanism that the legislative scheme establishes to deal with unsuccessful nominations is to convey the power to review the nomination refusal on the Tribunal whereby the employer will be able to adduce new or further material in support of its case that the nomination should be approved: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [89] per Mortimer J as her Honour then was.
8. What that scheme does not contemplate is that cl 187.233 can be satisfied by subsequent nominations: Singh at [89].
9. The Tribunal was alert to this and considered the utility of adjourning the proceedings as well as whether the applicants had sufficient prior opportunity to elicit the evidence that they wished to rely on.
10. Refusing to adjourn the review and proceeding to make a decision was reasonably open to the Tribunal.
11. For completeness, I have also considered whether the Tribunal failed to comply with its procedural fairness obligations under Division 5 of Part 5 of the Act.
12. The Tribunal was obliged to invite the applicants to a hearing to give evidence and present arguments: s 360. Section 360A sets out the means by which an invitation must be made and its contents. I detect no error in the Tribunal's invitation.
13. Section 359A requires:

(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. The Tribunal put the adverse information about the nomination to the applicants in accordance with s 359A and the applicants had an opportunity to respond to it in writing prior to the hearing and orally at the hearing.

48. In my view, the Tribunal has complied with its procedural fairness obligations.

1. It follows that I am satisfied that the applicants do not have reasonable prospects of successfully establishing ground one.

Ground two

1. Ground two alleges that the Tribunal's decision is affected by jurisdictional error on the basis that the Tribunal breached its obligations under ss 348 and 349 of the Act.
2. The particulars of the ground state that the Tribunal failed to review the applicants' application and refers again to the Tribunal's power to adjourn under s 363(1)(b).
3. The particulars also state that the Tribunal failed to consider the applicants' eligibility for subclass 187 visas under other streams.
4. Section 348 requires the Tribunal to review a Part 5 reviewable decision if an application is properly made under s 347. Section 349 sets out the Tribunal's powers on review.
5. It is clear that the Tribunal performed its statutory duty under s 348 and exercised its power under s 349(2) to affirm the delegate's decision.
6. Given that the first applicant did not and could not satisfy cl 187.233 this was the only course open to the Tribunal. There is nothing unreasonable in the Tribunal taking it.
7. Turning to the applicants' claim that the Tribunal erred in not considering whether the applicants satisfied any other stream for the grant of a subclass 187 visa, it is apparent from the Tribunal's reasons at [20] that it turned its mind to whether the applicants were seeking to satisfy the requirements of the other streams in subclass 187, noting that the applicants had not advanced any claims with respect to any other stream.
8. There is nothing in the material before me to suggest that the applicants made representations to the Tribunal that they satisfy any other stream in subclass 187.
9. In my opinion, there was no obligation on the Tribunal to consider the applicants against any other stream in subclass 187 (see Rani v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 383 at [28] per Judge Mansini).
10. In any case, the applicants could not have satisfied the criteria for the grant of a visa temporary residence transition scheme which was the only other stream open to the applicants to apply for.
11. That stream has an equivalent criterion to cl 187.233 requiring an approved nomination: cl 187.223. It is not in contest that the first applicant has never been the subject of an approved nomination in accordance with either stream.
12. For these reasons, I am satisfied that the applicants do not have reasonable prospects of successfully establishing ground two.

1. The Court agrees with the analysis in the Registrar's Dismissal Decision. Consequently, the Court, as presently constituted, discerns no jurisdictional error in the decision of the Tribunal.
2. At the hearing, the Court, as presently constituted;

(a) confirmed with the Primary Applicant that she had no nomination at the time of the Delegate's decision, nor at the time of the Tribunal's Decision. What is apparent, therefore, is that the Primary Application has been alive to this fatal fact since 29 August 2019, when her then representative also told her she had no nominator. Consequently, the only explanation for why the Primary Applicant pursued this matter before the Tribunal and in this Court is for the improper collateral purpose of extending her visa to remain lawfully in Australia; and

(b) asked the Primary Applicant to explain in her own words how the Tribunal got the affirmation decision wrong. The Primary Applicant responded by saying that she did not know and that she was told she could "appeal to the judge". At the end of the hearing, the Applicant was asked if she had anything final to say, she did not.

1. 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 Originating Application, the materials before the Tribunal and the Tribunal's decision to identify any jurisdictional error. The Court has also read the Primary Applicant's substantive 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 no error has been disclosed on the Tribunal's part, and the Court is not persuaded that a reasonably arguable case of jurisdictional error arises out of the substantive application. In any case the issue of futility renders the grounds for judicial review otiose.[37]
2. This factor weighs against granting the Applicants an extension of time.

Pursuant to cl 187.223 of the Regulations, the position for which the applicant was nominated in her visa application must be the one in relation to which the declaration was made in the visa application. That is, it cannot be satisfied by any different nomination not declared in the visa application.

1. Consequently, the matter can be simply disposed of on the basis of futility.[38] That is, even if the Applicants were to establish an error on behalf of the Tribunal, it would be futile to remit the matter to the Tribunal. The result would have to be the same. This is because at the relevant time the Primary Applicant did not have an approved nominator and nothing can cure that. The refusal of the nomination was fatal to the Primary Applicant's application for a visa. The Primary Applicant has understood this since at least August 2019.
2. The Delegate made the only decision they could in the face of that evidence. The Tribunal in a procedurally fair way put this to the Primary Applicant and provided her with an opportunity to respond. The Primary Applicant sought an adjournment which was reasonably refused because no amount of time could cure the fact that she did not have a nomination at the point of time of the Delegate's decision.
3. Further, cl 187.233 of the Regulations cannot be satisfied by finding or substituting another nominator not declared in the visa application.[39] Therefore, an adjournment to allow more time to substitute another nominator would have been ineffective. In those circumstances the decision of the Delegate had to be affirmed by the Tribunal. Consequently, the Court would, in the exercise of its discretion, be obliged to refuse relief to the Applicant.

1. Upon weighing the above factors, the Court considers it is not appropriate to extend time for the applicant to file the Review Application. This is due to the unsatisfactory explanation provided by the Applicant for the delay, the underlying application having no reasonable prospects of success, and the futility of remitting the matter to the Tribunal.
2. The Court will hear the parties on costs.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the 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]

[2] BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307, [11].

[31] [2019] FCA 600 at [7].

[32] [1984] FCA 176; (1984) 3 FCR 344.

[33] [2022] HCA 28; (2022) 276 CLR 579, [12].

[34] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, [61].

[35] MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392, [113] (MZAIB).

[36] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, [21].

[37] Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 438, [68].

[38] Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267, [82].

[39] Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267, [88]-[89]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3.