Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1335

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. By application lodged on 5 December 2019, the applicants have sought judicial review of a decision of the former Administrative Appeals Tribunal (Tribunal), which was made on 25 November 2019. In that decision the Tribunal affirmed an earlier decision of a delegate of the (then) Minister for Immigration and Border Protection, which was made on 20 February 2018, refusing to grant the applicants visas. The delegate refused the visa application because the first applicant, in the delegate's view, did not satisfy or meet the criteria specified in cl 187.233 of Sch 2 of the Migration Regulations 1994 (Cth)[1] (Regulations). Clause 187.233, relevantly, required that the first applicant be subject to an approved employer nomination.
2. In an amended response lodged by the first respondent on 21 March 2025, the first respondent claimed that the applicants' judicial review application had no reasonable prospect of success and sought, relevantly, that there be an order summarily dismissing the application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021 (Cth) (Rules).
3. On 19 May 2025, Registrar Lindsay summarily dismissed the applicants' judicial review application on the basis that it had no reasonable prospect of success, and ordered the applicants pay the first respondent's costs in the sum of $4,189.38.
4. On 28 May 2025, the applicants applied to this Court for a review of the Registrar's decision pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) and r 21.02 of the Rules.
5. The applicants' application was made outside of the time prescribed by r 21.02(2). The last date for making a valid application within time, given the Registrar's decision was made on 19 May 2025, was 26 May 2025. The review application did not specify that the applicants sought an extension of time, but during the hearing before me the first applicant made, and I accepted without opposition, an oral application for an extension of time. For completeness, the first respondent does not consent to an order extending time.
6. By way of some background, on 26 October 2016, the first applicant, who is a citizen of India, applied for a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa, and nominated her sponsoring employer as Mogal Pty Ltd.
7. The second applicant is the first applicant's husband, who was included in the application as a member of the same family unit. The initial review application nominated a migration agent as authorised representative. The first applicant attached several documents to her application, including secondary school results, certificates and results for a Diploma of Business from IICT Pty Ltd, an International English Language Testing Systems (IELTS) report, and a resumé.
8. The application was acknowledged as received by the (then) Department of Immigration and Border Protection, and on 22 January 2018 by email transmission to the applicants' migration agent, the Department invited the applicants to comment on some adverse information in relation to the first applicant's visa application. The Department advised that the nomination submission by Mogal Pty Ltd had been refused, and the first applicant's visa application could not be approved.
9. The first applicant was invited to withdraw her application, and was told that if she did not respond to the letter within 28 days, the application would be refused. By email transmission on 6 February 2018, the applicant's representative informed the Department that the applicant did not intend to withdraw her application and to proceed with its decision, and so on 20 February 2018, the Minister's delegate refused the applicants' visa application, dispatching a copy of the delegate's decision record to the applicants' representative. The delegate's decision record records that the delegate was not satisfied the first applicant met the criteria in cl 187.233 of Sch 2 of the Regulations.
10. Clause 187.233 of the Regulations relevantly provides as follows:

187.233

...

(3) The Minister has approved the nomination.

(4) The nomination has not subsequently been withdrawn.

1. Because another delegate refused the employer nomination lodged by Mogal Pty Ltd which also proposed to employ the first applicant, the delegate considering her application for a visa determined the first applicant did not meet the relevant criteria and, consequently, refused the first applicant's visa application, and, because the second applicant's visa application was contingent on the first applicant holding a valid visa, that application was also refused.
2. On 9 March 2018, the first applicant applied to the Tribunal for a review of the delegate's decision, the Tribunal acknowledging receipt of the application on 6 April 2018, and advising the first applicant that if she wished to provide any further material or any written arguments, to do so as soon as possible. The correspondence also enclosed for the first applicant's information an 'Information for migration review applicants - MR division' fact sheet. The second applicant was subsequently added as an applicant to the review application.
3. On 22 October 2019, the Tribunal invited the applicants to comment on or to respond to adverse information which the Tribunal considered would be a reason, or part of the reason, for affirming the delegate's decision under review. The particulars of the information were:

The application for approval of the nominated position made by Mogal Pty Ltd (the nominator) 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. This means that the nominator's application for the nominated position has not been approved.

1. The Tribunal also advised the applicants as follows:

The 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 subject of an approved nomination.

If we rely on this information to make a decision, we may find 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.

1. The Tribunal in that same correspondence requested the applicants to provide any comments or response to the information, and to do so by 6 November 2019. The Tribunal invited the first applicant to withdraw the review application if she no longer wished to continue with the review, and the Tribunal advised the applicants of the consequences if no comments or response were received. The relevant correspondence provided, under a heading 'Consequences of not responding', the following:

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. The first applicant sought an extension of time to provide comments or a response and indicated that the applicants "...are trying very hard to find a new employer."
2. The Tribunal granted the extension of time and indicated the response must be received by 20 November 2019. No further extensions were sought, and neither the first nor second applicant submitted any comment or response. On 25 November 2019, the Tribunal affirmed the decision under review, and it notified the first applicant by email transmission on 26 November 2019. The correspondence advising of the decision enclosed an 'Information about decisions - MR Division' form, a copy of the Tribunal's Statement of Decision and Reasons (Decision) and an extract of cl 187.233 of Sch 2 of the Regulations for the applicants' information.
3. Turning then to the Tribunal's decision, the Tribunal reproduced some brief background matters concerning the application at [1]-[6] of the Decision, and noted at [7] of its Decision that the relevant issue for determination was whether the first applicant was the subject of an approved nomination pursuant to the requirement in cl 187.233 of Sch 2 of the Regulations. This is also set out at paras [8] and [9] of its Decision.
4. Next, the Tribunal records that the first applicant's nominated employer, Mogal Pty Ltd, applied to the Department for an approval of the nomination application, which was subsequently refused by a delegate. The Tribunal notes in its Decision that the nominated employer applied for a review of that delegate's decision, and on 17 October 2019, the Tribunal, differently constituted, decided to refuse the application: Decision at [10]-[11].
5. The Decision also notes that the Tribunal advised the first and second applicants on 22 October 2019 that the nomination application had been refused, and invited them to provide any comments or response, but noted that no response or comments were received, despite having advised the applicants of the consequences of not responding, to the Tribunal's capacity to make a decision: Decision at [12]-[15].
6. The Tribunal records that it considered whether it was required in the circumstances to adjourn the hearing under s 363(1)(b) of the Migration Act 1958 (Cth)[2] (Act) to allow the first and second applicants to provide further information: Decision at [16].
7. The Tribunal observed that the applicants had been aware of the reasons for the visa application for more than 21 months, and considered the applicants had a fair opportunity and sufficient time to provide information to satisfy the criteria, and the Tribunal considered that it was uncertain whether the applicants would provide any information at all and, ultimately, determined not to exercise its discretion to adjourn the proceedings: Decision [18]-[21].
8. The Decision sets out that as there was no approved nomination in relation to the first applicant, the criteria in cl 187.233 of Sch 2 of the Regulations had not been met, and so the Tribunal affirmed the decision under review in relation to the first applicant and, as a consequence, the second applicant was not a member of the same family unit of a person who held a visa, and so the Tribunal affirmed the decision under review in relation to the second applicant: Decision at [22]-[28].
9. As I earlier noted, a Registrar of this Court on 19 May 2025 decided ex-tempore to summarily dismiss the applicants' judicial review application, because the Registrar considered it had no reasonable prospect of success. The applicants subsequently applied for a review of the Registrar's decision pursuant to s 256(1) of the FCFCOA Act and r 21.02 of the Rules.
10. That application, as indicated, was made outside of the timeframe prescribed. The application itself contains no grounds, and there was, as I noted, no application to extend time. I allowed the applicant to pursue an extension of time at the hearing, the application having been earlier orally made. Accordingly, I will determine both the extension of time and the review application concurrently, should that be necessary.
11. Section 256(1) of the FCFCOA Act permits a party to a proceeding in which a delegate has exercised any powers of the Court to apply to the Court for a review of the exercise of those powers. Such an application must be made within the time prescribed under the Rules, or within such further time as allowed in accordance with the Rules. The Rules provide that an application for a review of the exercise of power by a Registrar must be made within seven days of the exercise of that power.
12. The Registrar, as noted earlier, exercised power on 19 May 2025. The last day for making a valid application was 26 May 2025. So, the application was two days outside of the timeframe permitted.
13. Rule 21.02 allows the Court to extend time on any terms as the Court thinks fit, and, as already noted, the consent of the other party to the proceeding is absent. The broad discretion to extend time is guided by the principles which were articulated in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176, 3 FCR 344 at 348-349. Put simply, as I explained to the applicants at the commencement of these proceedings, the matters that are relevant are the explanation for the delay, whether the applicant took any step to contest the review decision other than by making this application, any prejudice to the first respondent in defending the proceeding, and the merits of the underlying application.
14. It is accepted by the first respondent, and it is self-evident that the period of delay is short - it is only two days. But that, in and of itself, does not win the day. The first applicant's explanation for the delay - that she was unaware of the time limit - is not an unusual retort from applicants seeking an extension of time, and it is met by the equally frequent retort that it is the applicant's responsibility to understand the time limits applicable to the exercise of any particular legal right, and it does not provide an acceptable explanation for the delay to simply say: 'I was not aware of the timeframe'.
15. No other reason was advanced by the applicants for the delay, noting that the first applicant is overseas, but that is a matter for her. If she wished to pursue this application, then it was incumbent on her to satisfy herself that any time limit which applied to the exercise of a right to review the Registrar's decision could be met. In the circumstances, I am not persuaded that there is an acceptable explanation for the delay. As a consequence, the absence of an acceptable explanation weighs against the applicants, but not in a significant way, noting that the period of delay is relatively short.
16. The first respondent properly acknowledges that no prejudice will flow. Prejudice, of course, without more, will rarely justify the grant of an extension of time.
17. Turning to the merits of the underlying judicial review application, which the Registrar concluded had no reasonable prospects of success. By the earlier mentioned judicial review application, the applicants set out three grounds of review which are reproduced below:

1. The Tribunal made a jurisdictional error in finding that the First Applicant does not meet the criteria clause 187.233 of Schedule 2 to the Regulations.

1. A jurisdictional error was made by the Tribunal in refusing the related nomination application referred to in the visa application. 2. The Tribunal made a jurisdictional error in failing to consider correspondence tasks performed by the First Applicant is related to the tasks of an occupation specified in the relevant instrument for the purposes of sub-regulation 5.19(4)(h)(i) and 5.19(4)(h)(ii) of the Migration Regulations.

1. The Tribunal made a jurisdictional error in finding that an adjournment of review should not be granted under subsection 363(1)(b) of the Migration Act to allow the applicants additional time to provide further evidence to support their review applications. 2. The Tribunal made a jurisdictional error to proceed to decision without taking further steps to obtain comments on or a response to the information contained in the Tribunal's letter of 6 November 2019.
2. The applicants were unable, during the presentation at the hearing before me, to elaborate on any of those grounds. Nonetheless, I will deal with them as they appear in the application.
3. By ground 1, the applicants take issue with the separate decision made by the Tribunal in relation to the employer nomination refusal. The Tribunal's decision which is the subject of this application for judicial review concerned the delegate's decision refusing the applicants' visa application. It did not concern a review of another delegate's decision to refuse the requisite nomination.
4. This judicial review application or the proposed judicial review application does not enliven any challenge to the nomination refusal decision because it is not the decision the subject of this application. It is to be doubted whether the applicants have standing to bring what might be described as a collateral challenge to the decision in connection with the nomination refusal. Discussion about the capacity to bring such an application is to be found in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 at [100], [128] and [205].
5. But if a collateral attack on the validity of the Tribunal's decision affirming the delegate's decision to refuse the nomination were possible, in this instance, I would not allow such an attack because self-evidently, not all the relevant parties are here. The proposed employer, Mogal Pty Ltd, would have a right to be heard, but it is not here and is not on notice about these proceedings. Consequently, even if collateral attack is possible, I will not allow it to proceed in this application.
6. By sub-para (b) of ground 1, the applicants contend jurisdictional error in connection with the Tribunal's failure to consider corresponding tasks performed by the first applicant and its relationship to the occupation specified in the relevant instrument. The ground is plainly misconceived because it misunderstands the basis upon which the Tribunal decided their merits review application. The Tribunal determined that the relevant criteria for the grant of the visa sought was not satisfied because the nominator's application had not been approved by the Minister.
7. The Tribunal did not decide the matter on the basis that the first applicant's position nominated in the application for approval did not meet the requirements specified in sub-paras 5.19(4)(h)(1) or (2), as set out in that ground. Consequently, the Tribunal did not need to consider the applicants' complaint in sub-para (b) of ground 1. Together, ground 1 does not disclose any arguable case of jurisdictional error.
8. By ground 2, the applicants claim the Tribunal erred in not granting an adjournment, pursuant to section 363(1)(b) of the Act.
9. The grant of an adjournment is discretionary. The Tribunal explained its reasons for not granting the adjournment at [16] through to [21]. The first and second applicants were earlier granted more time to enable them to provide information or comment in respect of the matters raised by the Tribunal, those matters having potentially an adverse consequence for the disposition of their application. But despite the extension, they provided no further comment.
10. As the Tribunal pointed out, the applicants were well aware of the reasons why the application failed, for many months, by reason of the delegate's decision. The applicants were provided an opportunity to provide further information or comment to satisfy the Tribunal, and they did not do so. The reasons for the Tribunal's decision set out in cogent, rational terms why an adjournment was refused, and disclose an evident intelligible basis for its decision to proceed to determine the matter, rather than adjourning. It was completely open to the Tribunal to act in that way. Accordingly, ground 2 does not disclose any arguable case of jurisdictional error.
11. As to ground 3, the applicants contend that the Tribunal erred by proceeding with a decision without obtaining any comments or response to the information contained in the Tribunal's letter dated 6 November 2019. This ground does not, in my view, disclose any arguable case of jurisdictional error. The applicants were invited to but did not provide comment or a response within the time originally specified, nor within the extended time, and the Tribunal was entitled to make a decision without taking any further action.
12. Indeed, in earlier correspondence, the Tribunal explained that a consequence of not responding might be that the Tribunal would decide the application on the material to hand. And a further consequence might be that the applicants would lose any right they had to a hearing where they could lead further evidence or make submissions. As I indicated, the Tribunal extended the time for compliance. There was no response received and, again, the Tribunal's reasons for proceeding to make a decision provide an evident and intelligible basis for that decision. In those circumstances, the steps that it took were open to it and no jurisdictional error is disclosed. In the second applicant's affidavit, which I have marked as Exhibit A1, the second applicant sets out at [7], dealing with the Registrar's decision, that the Registrar erred in summarily dismissing the application, and that the application raises arguable issues warranting full judicial consideration, and then sets out some grounds. The first ground is at [8(a)], which alleges that the Tribunal refused to grant an adjournment and proceeded in the absence of final submissions, depriving the applicant of a fair opportunity to be heard.
13. That matter is just a reformulation of grounds already set out in the application and are matters which do not raise an arguable case of jurisdictional error for the reasons I have already given. In any event, it is not apparent to me what it is that the applicants could have said, given that the first applicant did not appear, on its face, to meet the mandatory criteria set out in cl 187.233. At [9(b)], the second applicant says the Tribunal placed disproportionate weight on the refusal of the nomination and failed to properly consider or inquire into relevant matters under its statutory obligation.
14. The requirement for an employee nomination is a mandatory term. There is no discretion which turns on it. You either have one or you do not. It is not a question of apportioning weight. An applicant for a visa must meet all the criteria set out in cl 187.233. In this case, the Tribunal found, and I do not think it is in dispute, that the applicant did not meet one of the mandatory criteria. The ground does not raise any arguable case of jurisdictional error, nor does the second applicant identify what matters the Tribunal failed to properly consider or inquire into.
15. As to paragraph [10(c)], the second applicant asserts that the power of summary dismissal should be used sparingly and, given the nature of the errors, the matter warranted a hearing on the merits, or to the extent that [10(c)] is a submission in respect of my exercising de novo review powers, the reasons or the grounds alleged by the applicants do not raise any arguable case of jurisdictional error. And if I were exercising the power of dismissal, this is a case which raises to the level of it having no reasonable prospect of success, and is an appropriate candidate for dismissal on a summary basis.
16. But the argument in paragraph [10(c)] does not, in and of itself, raise any arguable case of jurisdictional error. It is simply a submission. No other grounds were advanced by the applicants during their oral presentation at the hearing, and I am not persuaded that any of the grounds raise an arguable case of jurisdictional error. I consider that the Registrar's assessment that the application for judicial review has no reasonable prospect of success was manifestly correct, because none of the grounds in the application, nor in the second applicant's affidavit, raise or make out an arguable case of jurisdictional error.
17. The merits of the underlying application for the judicial review are, it must be said, exceptionally weak. Given the applicants have not provided any explanation for the delay, albeit the delay is of a short period, noting that the Minister will not suffer any prejudice and as the underlying judicial review application is exceptionally weak, I do not consider that an extension of time to review the exercise of the summary dismissal power by the Registrar should be granted. But even if I were to grant an extension of time to enable a review of the Registrar's decision to proceed, for the reasons already stated, I would, in considering the first respondent's summary dismissal application on a de novo basis, conclude that the underlying judicial review application has no reasonable prospect of success, and I would dismiss the judicial review application on that basis. But for present purposes, the application for an extension of time will be refused.
18. The first respondent sought an order for costs in the amount of $2,000.00 in the event that the applicants were unsuccessful, and the applicants were unable to advance any cogent reason why an order for costs in the amount sought should not be made.
19. Taking into account the matters raised, the relative complexity, and the submissions filed by the first respondent, together with the time dedicated to the hearing today, I consider that the amount sought of $2,000.00 is reasonable and appropriate. Consequently, the first and second applicants will be required to pay a sum of costs to the first respondent in the amount of $2,000.00.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Gostencnik.

[1] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.

[2] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.