Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1790

1. On 28 July 2025, a judicial registrar of this Court decided to summarily dismiss Ms Jaspreet Kaur's application for judicial review pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCOA Act). The registrar was satisfied the applicant had no reasonable prospects of successfully prosecuting the proceeding. On 25 August 2025, Ms Kaur asked the Court to review the registrar's decision pursuant to s 256 of the FCFCOA Act.
2. When the Court conducts a review of the exercise of a delegated power, the review is carried out de novo. That means the Court addresses itself to the same question which was before the registrar without further regard to the registrar's reasons. To be clear, a review of this kind requires that I consider whether I am satisfied the applicant has no reasonable prospect of successfully prosecuting the proceeding. That inevitably means I must engage with the substance of the applicant's case. But there is a problem: the applicant's request for a review of the registrar's decision appears to have been filed out of time. I cannot deal with the application for review of a registrar's decision unless I grant the extension of time. As I shall explain, I am not satisfied it is appropriate to extend time in this case. In reaching that view, I have necessarily traversed the merits of the application for review. I explain all this below.

1. Section 256(1)(a) of the FCFCOA Act says an application for review must be commenced within the time prescribed in the Court's rules. Rule 21.02(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the 2021 rules) - the version of the rules which were in force at the time of the registrar's decision - says the application for review must be commenced within 7 days of the date of the exercise of the power in question. Ms Kaur did not file her application within that timeframe. The Court's new rules - the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (the 2025 rules) which commenced on 1 September of this year - provide a more generous timeframe. Rule 3.06(1) of the 2025 rules says the application for review must be commenced within 21 days of the registrar's exercise of the power. While I am satisfied the time limit in the 2021 rules applies in this case, the applicant also failed to comply with the more generous time limit contemplated in the 2025 rules. It is therefore necessary to consider whether Ms Kaur should be given an extension of time. If an extension is not granted, the registrar's decision will stand, and that is the end of the matter.
2. The Court has the power to extend the time for filing an application for review. That power is found in r 21.02(2) of the 2021 rules. The Court may extend the time "on any terms that the Court...thinks fit" or with the consent of the parties. The power to extend time under the 2025 rules is found in r 1.15(1). While the wording is different, the power to extend time in each version of the rules is functionally the same.
3. Time limits are imposed for good reason: they promote the orderly administration of justice. It follows the time limits must be taken seriously, but the discretion to extend time permits exceptions to be made in appropriate cases. While the rules are silent about the factors that might be relevant to the exercise of the discretion, the authorities which discuss extensions of time in other contexts offer a guide. Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 (at pp 348-349, per Wilcox J) says one would ordinarily have regard to the following factors in a case like this:
   • The extent of the delay, and the explanation for that delay. An applicant who has rested on their rights will attract less sympathy, particularly where other parties were entitled to assume the proceedings had been concluded;
   • Whether the other party (or anyone else, including the wider public or part of it) would be unfairly prejudiced by the granting of the extension; and
   • The merits of the substantive application.
4. Like all such powers, the discretion to extend time must be exercised judicially (in the fullest sense of that term) "to ensure that justice is delivered...effectively and efficiently": s 5(a), FCFCOA Act [emphases added].
5. In this case, the minister has opposed an extension of time. His solicitor at the hearing, Mr Qian, confirmed the minister did not contend he would experience any relevant prejudice if the extension were granted. Ms Kaur, for her part, explained she was confused by advice she received from her migration agent about the time limits which applied to the application for review. While her explanation delivered from the bar table was itself confusing, it appears she was conflating time limits that applied to her request for a bridging visa with the time limit for filing an application for review. While that confusion was understandable given her limited command of English, it is not a good reason for the delay. Having said that, the quality of the explanation for the short delay does not weigh heavily against the exercise of the discretion. The more important factor in this case is the merit of the underlying application.
6. It follows I must engage with the merits of the underlying application to decide whether an extension of time should be granted. As it happens, the merits are also determinative of the question before me in the review if an extension were granted.
7. I will begin by summarising the Tribunal's decision and the grounds of judicial review. I will then turn to the merits of the application for judicial review before returning to the question of whether to grant an extension of time.

The Tribunal's decision and the application for judicial review

1. Ms Kaur is a citizen of India. Her husband, Mr Sukhwinder Singh, is a cook. In 2018, Mr Singh applied for an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa. Ms Kaur applied for the same visa as a member of Mr Singh's family unit.
2. A delegate of the minister refused Mr Singh's application for a visa. Ms Kaur's application for a visa was also refused. Mr Singh sought review of the delegate's decision in the Administrative Appeals Tribunal. Ms Kaur (and later, their son) joined in that application for review. On 26 October 2023, the Tribunal affirmed the delegate's decision not to grant the visas. The Tribunal's decision and statement of reasons are reproduced in exhibit one (the court book) at pp 226ff. The essence of the Tribunal's reasons can be found in paragraphs [29]-[30] and [32]:

29. In his Subclass 186 visa application, Mr Singh indicated that he was nominated by the Company to work in the nominated occupation of Cook ANZSCO 351411. As set out in the Tribunal's s 359A letter, the Company's nomination was refused by the Department on 26 June 2019 and the Company applied for review at the Tribunal on 6 July 2019. However, subsequently, it withdrew its review application and the withdrawal was finalised by the Tribunal on 26 June 2023. The Full Federal Court in Singh v MIBP [2017] FCAFC 105 has confirmed this is a 'once off' process. Mr Singh was required, as the primary visa applicant, to declare that the position to which the applicants' visa application relates is a position nominated under reg 5.19 and he provided details of the Company's nomination (TRN EGO149T5RT) for the position of Cook at its Candelori's restaurant in Smithfield.

30. Since the review application regarding the Department's refusal of the Company's nomination for the position of Cook at its Candelori's restaurant for Mr Singh was withdrawn, the Tribunal must affirm the delegate's decision to refuse their Subclass 186 visa application as he does not meet the criterion in cl 186.223(2) of Schedule 2 to the Regulations.

...

32. Ms Kaur applied for her Subclass 186 visa application on the basis of being a member of the family unit of a person who holds a Subclass 186 visa. As Mr Singh does not hold a Subclass 186 visa, the delegate's decision to refuse her visa application must also be affirmed. The third named review applicant, Master Ranveer Singh Dubb, was born in Australia on 20 August 2019 and added to the review application after his birth. As Mr Singh does not hold a Subclass 186 visa, the Tribunal finds that Master Dubb does not meet criteria as a secondary applicant for the visa.

1. In short, the Tribunal concluded the outcome of Ms Kaur's application for a visa depends on the outcome of Mr Singh's application because he is the primary applicant. She cannot succeed if his visa application is refused, and the Tribunal said his visa was properly refused because there was no approved employer nomination in place.
2. Ms Kaur's application for judicial review purports to identify three grounds of review. The first ground asserts without particulars that the Tribunal's decision is affected by jurisdictional error. The second ground contends Ms Kaur is a genuine applicant who wants to appeal the Tribunal's decision. The third ground contends the Court should hear the matter to deal with the (unparticularised) jurisdictional error - presumably the same jurisdictional error or errors referred to but not described in the first ground.

1. Any assessment of the merits of the underlying application turns on the Tribunal's approach to the rules regulating the grant of subclass 186 visas.
2. The criteria which govern the grant of this type of visa are found in cl 186 of sch 2 to the Migration Regulations 1994 (Cth) which establishes the Employer Nomination Scheme. The scheme contains several streams. Each stream has its own eligibility criteria although there are also some common criteria that are applicable to all applicants. Clause 186.22 contains the criteria applicable to individuals like Mr Singh and Ms Kaur who seek a subclass 186 visa in the Temporary Residence Transition stream. The notes to cl 186.2 of sch 2 to the Regulations explain "All criteria must be satisfied at the time a decision is made on the application."
3. The scheme allows an employer to lodge an application with the minister that nominates a designated role which will be filled by the applicant for the subclass 186 visa. The nomination process is dealt with in reg 5.19 of the Regulations. Amongst other information, the application must identify the stream in which the individual seeking the visa is applying.
4. In this case, a labour hire company had nominated a position which it wanted Mr Singh to fill. It noted Mr Singh was applying as part of the Temporary Residence Transition stream.
5. A delegate of the minister refused the employer's nomination on 26 June 2019. The employer sought review of the delegate's decision with respect to the nomination. I understand those proceedings in the Administrative Appeals Tribunal were withdrawn. That means the delegate's decision to refuse the approval remains in effect.
6. A close reading of the criteria in cl 186.22 reveals why the delegate's decision to refuse the nomination is a problem for Mr Singh and the applicant. Clause 186.223(2) provides the minister must have approved the nomination. I note cl 186.223(3) goes on to provide the nomination must not have been subsequently withdrawn, and cl 186.223(4) says the position must still be available to the applicant. These criteria must be satisfied at the time when the decision with respect to the visa is made. If they are not, the application for a visa must be rejected: see generally Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 at [88] and [90] per Mortimer J.
7. Clause 186.3 sets out the secondary criteria applicable to this subclass. The secondary criteria apply to members of the family unit of the primary applicant. Clause 186.311 makes clear a secondary applicant cannot be granted a visa if the primary applicant is unsuccessful.
8. The Tribunal's reasoning that I have already set out demonstrates a correct understanding of the relevant criteria and their operation. The Tribunal reached the only conclusion open to it on the evidence in relation to Mr Singh. There is no evidence before me suggesting Mr Singh has successfully appealed that decision, which means the conclusion - that Mr Singh was ineligible for a subclass 186 visa at the time of the decision - stands. That being so, Ms Kaur cannot possibly succeed in her separate but related application for the same visa because she has applied as a member of Mr Singh's family unit.
9. It follows there is no merit to Ms Kaur's underlying application for judicial review, and she has no reasonable prospect of prosecuting those proceedings if she were allowed to go to a final hearing.

1. If I were to grant an extension of time to file an application for review of the registrar's decision, that review would surely be resolved against Ms Kaur for reasons that I have explained. I am satisfied there is no reasonable prospect of the applicant successfully prosecuting her application for judicial review. That being so, I am satisfied there is no point in exercising the discretion to extend time for the applicant to lodge her application for review of the registrar's decision. When considering all the factors which are relevant to that decision, the absence of merit weighs heavily - indeed, decisively - against exercising the discretion. The application for an extension of time must be refused.
2. I will hear from the parties as to costs.

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