Kaur v Minister for Immigration and Citizenship [2026] FedCFamC2G 86

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. These are the reasons for judgment delivered ex tempore on 23 January 2026, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor matters to reflect the intention of the Court.
2. This matter is a review of a decision of a registrar of this court to summarily dismiss the Applicant's application for judicial review. This hearing is a hearing de novo. That is to say, the decision is not concerned with correcting any error on behalf of the registrar. Rather, as explained, it is a fresh hearing which may result in a different order, having the effect of undoing or revoking the decision of the registrar.[1]

1. Mrs Kuljit Kaur is the Primary Applicant and her husband, Ganjan Deep Singh Radhava, is the Secondary Applicant. They are citizens of India.[2]
2. On 21 December 2017, Soto Nominees Pty Ltd, who I will refer to as the Nominator, nominated the Primary Applicant to work in a position of beauty salon manager under an employer nomination class EN subclass 186 visa, which I will refer to as the Nomination Visa. On 6 January 2018, the Primary Applicant applied for the Nomination Visa in respect of the position of hair or beauty salon manager with the Nominator.[3]
3. On 26 August 2019, a delegate of the First Respondent refused to approve the nomination application made by the Nominator. On that same day, a letter was sent to the Applicants advising them of the nomination refusal and giving them an opportunity to comment on the information.[4] No response was received. The Nominator applied to the Tribunal for review of the Delegate's decision. The Tribunal affirmed the Delegate's decision on 5 March 2021.[5] The Nominator sought judicial review on 22 April 2021. However, the Nominator filed a notice of discontinuance on 4 September 2025.[6] These facts were accepted by the Primary Applicant appearing before the Court at the hearing.
4. On 25 September 2019, the Delegate refused to grant the Primary Applicant the Nomination Visa because the Delegate was not satisfied that the position which the application related to was subject to an approved nomination. As a result, clause 186.223 of the Migration Regulations 1994 (Cth) was not satisfied, and the application for a visa was refused. The Delegate further found that the Secondary Applicant did not meet the requirements of the relevant clause because he was not a member of a family unit of a person who held a visa.[7]
5. By operation of section 476(2)(a) of the Migration Act 1958 (Cth), this Court has no power to review the decision of the Delegate, nor can this court review the decision of the Delegate or Tribunal in relation to the Nominator's application.
6. On 11 October 2019, the Applicants applied to the Tribunal for review of the Delegate's decision that applied to them.[8] On 18 January 2021, the Tribunal invited the Applicants to attend a hearing scheduled for 5 March 2021.[9] On 26 February 2021, the Applicants' representative provided prehearing submissions and documents.[10]
7. On 5 March 2021, the Primary Applicant appeared before the Tribunal. There was no appearance for the Secondary Applicant. The Primary Applicant was assisted by her representative and a Punjabi interpreter.[11]
8. On 9 March 2021, the Tribunal invited the Applicants to comment or respond to information contained in the section 359A invitation,[12]

Particulars of the information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review:

1. On 5 March 2021 the Tribunal affirmed a decision to refuse to approve the nomination of a position in respect of you.

Why the information is relevant to the review:

2. As the nomination in respect of you has not been approved, you are not the subject of an approved nomination. In order for you to satisfy an essential criterion for the grant of the visa, the nomination of the position must be approved: cl.186.233 of Schedule 2 to the Migration Regulations.

The consequences of the information being relied upon in affirming the decision that is under review:

3. If you do not satisfy an essential criterion for the grant of the visa, the visa must be refused, and the Tribunal will affirm the decision under review.

You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 23 March 2021.

1. On 23 March 2021, the Applicants' representative responded to the 359A invitation,[13] they acknowledged that the Tribunal must affirm the decision to refuse the visa application:

We acknowledge that on 5 March 2021 the Tribunal affirmed the decision to refuse the nomination applications connected to both Review Applicant's visa applications.

By affirming these decisions, we acknowledge that pursuant to cl 186.233 of Schedule 2 of the Migration Regulations 1994, the Tribunal must affirm the decision to refuse the Review Applicant's visa applications, as they are not subject to an approved nomination. The Review Applicant's understand and appreciate that the Tribunal is legally bound to make this decision.

1. On 26 March 2021, the Tribunal affirmed the Delegate's decision to refuse the Nomination Visa, and the Applicants were notified of this on 29 March 2021.[14] The Tribunal reached its decision because clause 186.223 required the position to which the application related to be subject to the approved nomination. The nomination had not been approved at the time the Tribunal made its decision, and therefore the relevant clause could not be satisfied. There were no claims made in respect of other visa streams. The decision under review therefore had to be affirmed, and the Primary Applicant was refused a visa. As a consequence, the Secondary Applicant was also refused a visa.[15]
2. On 19 April 2021, the Applicants applied to this Court for judicial review of the Tribunal's decision dated 26 March 2021. The application was filed within the 35-day time limit prescribed by the Migration Act and brought pursuant to section 476 of the Migration Act.[16] That section confers upon this Court, in relation to migration decisions, the same original jurisdiction as the High Court under section 75(v) of the Constitution. That is that this Court may undertake judicial review in respect of matters where a writ of mandamus or prohibition or injunction is sought against an officer of the Commonwealth.[17] The originating application seeks the writ of certiorari. However, it is deficient in the writ of mandamus and contained three grounds of review, which the Court considers later in this decision.
3. On 11 May 2021, the First Respondent (Minister) filed a response, seeking that the application be dismissed with costs. On 14 January 2022 the Minister filed a court book.
4. On 5 September 2025 at a call over, a registrar of this Court made orders at the request of the Minister that the response be amended to include an application for summary judgment under the relevant rules of this Court.[18] The Minister's application for summary judgment was therefore listed for hearing. Further orders were made:

(1) on or before 15 September 2025, the Applicants were to file and serve any amended application for judicial review with proper particulars of the grounds of the application;

(2) on or before 29 September 2025, the First Respondent was to file and serve written submissions and any evidence in support of the application for summary judgment; and

(3) on or before 13 October 2025, the Applicants were to file and serve written submissions and any evidence in opposition to summary judgment.

1. On 29 September 2025, the Minister filed written submissions. The Applicants did not avail themselves of the opportunity to file further materials; a matter that the Court confirmed with them this morning. On 9 December 2025 a registrar acceded to the Minister's application to summarily dismiss the originating application. The registrar made a further order that the Applicants pay costs in the amount of $4,510.
2. On 12 December 2025, the Applicants applied to have the registrar's delegated summary dismissal power reviewed and sought the following orders,
   1. The order made by the honourable registrar be reviewed and the matter be remitted back to Administrative Review Tribunal (ART) and Minister for Immigration and Citizenship.
   2. Order 2 & Order 3 of the honourable registrar's decision made on 09 December 2025 be reviewed and the cost order ($4,510.00) must be waived off.
3. The application was brought within 21 days as prescribed by the 2025 Rules of this Court.[19] On 19 January 2026, the matter was allocated to the Court as presently constituted and listed for hearing on the morning of 23 January 2026. The review application was heard as scheduled in person at the Court's Melbourne registry. The Primary Applicant appeared on her own behalf and on behalf of the Secondary Applicant and was assisted by a Punjabi interpreter.
4. Having regard to the interaction between the bench and the Primary Applicant through the interpreter and the Primary Applicant's individual responses in English, the Court is satisfied that the Primary Applicant understood the nature of the hearing. The Minister was represented by Emma Rogerson, a solicitor with HWL Ebsworth.
5. At the commencement of the hearing, the Court explained to the Primary Applicant that the Court cannot set aside the decision of the Tribunal unless there is an arguable case of jurisdictional error. It was further explained that in a review hearing, the test to be applied is whether there is a real or genuine dispute that might reasonably be resolved in the Applicants' favour. Noting that the Primary Applicant was unrepresented, the Court gave the Primary Applicant an opportunity to elaborate on her grounds of review. The Primary Applicant was provided an opportunity to outline any other concerns she might have with the Tribunal's decision. This is now the standard procedure in this Court, pursuant to Bala v Minister for Immigration & Border Protection.[20]
6. As stated, the question of whether the judicial review application ought to be summarily dismissed is required to be considered on a de novo basis. That is required by s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act),

143 Summary judgment

...

(2) The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.

1. The Court's power to give summary judgment is provided for in rule 23.08.[21] The Minister bears the onus, in an application for summary dismissal, to establish and satisfy the Court that the claims for relief made by the applicants in the proceeding have no reasonable prospects of success.[22] Relevant to a decision-making in relation to this matter is a decision of her Honour Judge Mansini in Patel v Minister for Immigration and Citizenship. Her Honour held:

[39] ... [I]t is worth noting that the task on judicial review is not to undertake a general review of the Tribunal's decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law

[40] ...[T]he Court is concerned with whether the case raises a real or genuine dispute that might reasonably be resolved in an applicant's favour as distinct from the identification of jurisdictional error in the Tribunal's decision...

[41] The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success. [23]

1. The Court respectfully adopt her Honour's reasoning.
2. In accordance with the approach taken in Patel and other similar matters, it is not necessary for the Court to engage in a detailed consideration of the grounds advanced by the Applicants. That is because it is sufficient to outline a series of indisputable facts which make clear this matter does not involve a real or genuine dispute, nor is it capable of being resolved in the Applicants' favour. Those facts are as follows.
3. A delegate on 26 August 2019 refused to approve the nomination application made by the Nominator. The Tribunal affirmed that decision on 5 March 2021. The Primary Applicant did not have an approved nomination, which the Delegate found, and the Tribunal affirmed on 26 March 2021, as it was the only decision open to both the Delegate and the Tribunal. The Applicants accepted this fact on 23 March 2021 in response to the hearing invitation. This morning, before this Court, the Primary Applicant indicated that she accepted that she did not have a nomination. She further accepted that the Tribunal could not have made any other decision but to refuse her a visa.
4. The incontestable fact is that the Tribunal, in affirming the decision of the Delegate, made the only decision that was open to it. Although it is unnecessary to do so, for completeness, the Court has considered three grounds of judicial review contained in the originating application made on 19 April 2021, at an impressionistic level.
   1. Please accept my judicial application for the review of refusal given by the Administrative Appeals Tribunal for the lodged application for the visa class EN Subclass 186 due to the clause 186.223 not being satisfied; which was based upon a site visit by the Immigration officials and an opinion formed by the Department of home affairs that adverse information existed; but the response given by the owner was not considered during the scheduled hearing.
   2. My judicial review application would assist me to stay here lawfully and await the outcome of the judicial review of the nomination effused or be a subject to an approved nomination which is a mandatory criterion for me to get my 186 visa granted.
   3. My nominated position that of a hairdresser with an ASCO code 391111 demands the skills and relevant AQF study which I hold and I am confident of performing the expected duties of the nominated position as expected by my owner; hence I seek judicial review of my visa refused by the Administrative review Tribunal as its remittal would help me to work full time on an ongoing basis for an Australian employer.
5. In respect of ground 1, the decision of the Tribunal was made on the basis that the Primary Applicant did not have an approved nomination. The narrative advanced by the Primary Applicant about the site visit and the opinions of the Department are irrelevant to that question. It is just simply the fact that the Primary Applicant had no approved nomination. The employer's response in that regard was of no assistance to the Tribunal, nor does it establish or assist the Applicants in establishing a real and genuine dispute in the present matter.
6. Ground 2 does not allege error and must be rejected.
7. Ground 3 does not allege error and must be rejected.
8. For these reasons, the Court is not satisfied that the Applicants have a reasonable prospect of establishing that the Tribunal's decision is affected by jurisdictional error. Because there is no real or genuine dispute that might reasonably be resolved in the Applicants' favour, the application before this Court has no reasonable prospects of success. There is no basis to have the decision of the Tribunal quashed and remitted. The Court therefore orders that the application for a review of the registrar's decision, which was filed on 12 December 2025, is dismissed.
9. I am satisfied that costs should follow the event. I am further satisfied that the costs sought by the Minister are reasonable.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns.

[1]BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307, [11]. See also Bechara v Bates [2021] FCFAFC 34; [2021] FCAFC 34; (2021) 286 FCR 166, [1]-[7].

[16] Migration Act 1958 (Cth) s 477(1).

[17] EDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 826, [64].

[18] r 23.08(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), and the service requirements in r 8.29 and r 8.31 dispensed with.

[19] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 3.06(1).

[20] [2019] FCA 600.

[21] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 3.08.

[22] Australian Securities and Investment Commission v Cassimatis [2013] FCA 641 at [45].

[23] Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 921.