Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 715

1. Pursuant to r 7.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the application for judicial review filed 25 October 2023 is amended to seek a writ of mandamus directed to the second respondent, requiring it to determine the applicants' application for review according to law;
2. The application for review filed 25 March 2025 is dismissed; and
3. The applicants pay the first respondent's costs and disbursements of an incidental to the application for review fixed in the sum of $1,500.00.

Note: The form of the order is subject to the entry in the Court's records.

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. The applicants seek to review the exercise of power of a Registrar of this Court made 20 March 2025. The Registrar ordered that the applicants' application for judicial review filed on 25 October 2023 be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
2. Reference in these reasons to "CB" pages are references to the Court Book that was tendered and admitted as evidence before this Court and designated exhibit "R2".

1. The applicants are citizens of India. The first applicant arrived in Australia on a student visa in November 2008, completing six vocational courses between 2008 and 2013 (CB 59). The second applicant is the husband of the first applicant and the third and fourth applicants are their children.
2. On 1 November 2017, the first applicant applied for a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa (visa) (CB 1-18). The application for the visa was refused by a delegate of the first respondent (Minister) on 29 November 2019 (CB 95- 105). On 17 December 2019 the applicants applied to the second respondent (Tribunal) to review the delegate's decision (CB 106-8).
3. On 13 October 2023 the Tribunal affirmed the decision of the delegate to refuse to grant the visa (CB 174-179) (Decision).

1. The Tribunal affirmed the delegate's decision to refuse to grant the applicants the visa because the proposed employer of the first applicant was not approved by the Minister in accordance with cl 187.233 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 178 [27]-[28]).
2. The criteria for the visa in cl 187.233 of the Regulations are mandatory and cannot be waived by the Minister. Approval of the proposed employer, Garber Food Pty Ltd, was refused by the Minister on 19 November 2019. The nominating employer then sought review of that decision by the Tribunal. On 13 June 2023, the Tribunal affirmed the decision to refuse approval of the employer's nomination.
3. On 30 August 2023, the Tribunal wrote to the applicants and invited them to comment or respond to information that the nominating employer was not approved and therefore the first applicant's position was not subject to an approved nomination (CB 135-7). The applicants then asked for two adjournments of the proposed hearing by the Tribunal. The first request was granted. The second request was refused. The hearing took place by video link on 13 October 2023 and the Decision was delivered later that day (CB 168-170).

1. On 25 October 2023, the applicants sought judicial review of the Decision pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
2. In a Response filed 2 November 2023, the Minister sought summary dismissal of the application for judicial review on the basis that the application for judicial review did not provide any particulars of any legal ground of review and had no reasonable prospects of success.
3. On 20 March 2025, there was a hearing before a Registrar of this Court by video link. The Registrar summarily dismissed the application for judicial review pursuant to r 13.13(a) of the Rules and ordered the applicants to pay the Minister's costs and disbursements of and incidental to the proceeding fixed in the sum of $4,189.38.
4. On 25 March 2025, the applicants sought review of the Registrar's decision (Review Application). The grounds of review were stated as follows:
   1. The order made by the Registrar on 20 March 2025 be quashed and set aside.
   2. My matter is to be heard by a Judge so that I can put my case in detail so that I can be properly heard and can receive natural justice.
   3. The order of the Registrar to be set aside because the Registrar failed to fully understand and take into account my factual circumstances which led us to an extension of time request to the Tribunal.
   4. The order of the Registrar be set aside because the Registrar was pre-determined to dismiss my review application because the Registrar failed to appreciate that the Tribunal did not do natural justice to me given my family's future was at high stakes.
   5. The decision of the Tribunal is to be quashed and set aside as the Tribunal failed to perform its duty when the Tribunal declined our request for extension of time so that we could seek legal advice and collate further information and documents in the matter which were extremely crucial for my family's future despite the fact that we made the Tribunal aware of the fact that my employer received the documents requested from the Tribunal very late which he sent to his lawyer on 09 October 2023 and the employer's lawyer advised him on 10 October 2023 that they could not advise and help in as he tribunal hearing was on 13 October 2023. That was the reason we requested the Tribunal to provide us with the extension of time as requested.
5. The grounds of review stated in the original application for judicial review were as follows:
   1. The 187 RSMS visa application lodged on 01/11/2017 was refused by the DHA on 28/10/2019.
   2. There was an employment contract signed between myself Navneet Kaur and Garber Foods Pty Ltd for annual salary of AUD 55000 as a restaurant manager which was for a period of 24 months and ongoing once the 187 RSMS visa would be granted.
   3. The terms and conditions of employment were not less favourable that what were to be provided to an Australian Citizen or a permanent resident by the employer Garber Foods Pty Ltd.
   4. I had already worked with the same employer under a different business SHIRAAZ MELBOURNE PTY LTD as a restaurant manager from December 2014 and also had my 457 visa approved for a position of a restaurant manager in Jan 2016. All the salaries were in accordance with TSMIT.
   5. I have been working as Restaurant manager in Australia since December 2014 and have more than 5 years of work experience in Australia as a Restaurant Manager.
   6. I will get my skills assessed by VETASSESS and be eligible for 190 - Skilled Nominated, 482 - Temporary Skill Shortage visa and 491 - Skilled Work Regional Visas. The AAT refused to grant me an extension of time thus overlooking Natural Justice Principle.
6. The Review Application hearing was heard before this Court at Melbourne on 7 April 2025. The first applicant appeared in person self-represented and was assisted by an interpreter fluent in the Punjabi and English languages. The first applicant's command of English was very good, and the assistance of the interpreter was not required.
7. Ms Liddy, solicitor, appeared for the Minister.
8. The hearing was a hearing de novo of the application for summary dismissal (r 21.04(1) of the Rules).
9. The Court confirmed at the hearing that the applicants received a copy of the Court Book prepared on behalf of the Minister and the Minister's outlines of written submissions dated 26 February 2025.
10. The Court also noted that the application for judicial review filed by the applicants only sought an order to quash the Tribunal's decision and did not seek a writ of mandamus requesting the matter be remitted to the Tribunal. An application that fails to seek a writ of mandamus or prohibition, or an injunction, has the result of not properly invoking the Court's jurisdiction pursuant to s 476(1) of the Act (see FRA18 v Minister for Home Affairs [2019] FCCA 2287 at [15] and [21]). Noting that the first applicant was unrepresented, it is understandable that the first applicant may not have appreciated the importance of this technicality, and noting that the solicitors for the Minister have not raised this technicality in the written submissions made on behalf of the Minister (and did not oppose amendment), the Court will order that the application dated 25 March 2025 is amended so as to seek a writ of mandamus. The Court has the power to do so, even on its own motion (see Singh v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 889 [44]-[51]). The Court finds that it is in the interests of justice and the overarching purpose of the Rules to dispense with non-compliance and amend the application for the just disposition of this proceeding.

1. 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 (s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act); r 13.13(a) of the Rules; see also Australian Securities and Investment Commission v Cassimatis [2013] FCA 641 at [45] (Cassimatis)).
2. The solicitor for the Minister referred to the six grounds of review in the original application for judicial review filed with this Court on 25 October 2025. It was submitted that none of those grounds of review establish or identify jurisdictional error by the Tribunal. Further, no particulars of the grounds were provided that disclosed any grounds for jurisdictional error. There was simply no facts or issues disclosed that required the application for judicial review to proceed to a further hearing.
3. The Minister's primary submission was that in the absence of an approved nomination the applicants were not entitled to the visa and there was no error by the Tribunal. The Tribunal was bound to affirm the decision of the delegate and refuse the application for the visa.
4. The solicitor for the Minister also tendered into evidence an affidavit of Katrina Petrovski affirmed 26 February 2025 (Exhibit R1) that annexed a screenshot from the departmental file confirming the Tribunal's decision to refuse the employer's nomination. The solicitor for the Minister also tendered into evidence an extract from the ASIC database for Gerber Foods Pty Ltd dated 7 April 2025 (Exhibit R3) that confirmed that Gerber Foods Pty Ltd was deregistered as a company on 9 June 2024.
5. It was submitted that even if there was jurisdictional error disclosed in the Decision it would be futile for the Court to remit the matter to the Tribunal for reconsideration as the Tribunal would be bound to affirm the delegate's decision because the employer was now deregistered and defunct.
6. It was also submitted on behalf of the Minister that there had been no denial of procedural fairness by the Tribunal in refusing a further adjournment of the hearing because the Tribunal had given the applicants sufficient notice of the hearing date, provided the applicants with an opportunity to comment on the absence of an approved nomination and had granted a previous adjournment in similar circumstances. A further adjournment would simply prolong the inevitable outcome of the application of review and was not necessary or warranted, which was the conclusion reached and expressed by the Tribunal (CB 160-1).
7. It was submitted that the applicants' application for judicial review had no reasonable prospects of success and the Review Application should be dismissed.

1. The applicants filed an outline of written submissions on 19 March 2025. In that outline, the first applicant submitted that she was a diligent, hard-working applicant that was disappointed by her employer's failure to obtain approval from the Minister to support her application for the visa. The first applicant also referred to the disappointment faced by her children now aged 10 and 13 years of age. The first applicant referred to the fact that she worked for the same employer for several years before the application for the visa was made and that the employer misled her and her family.
2. In her oral submissions to the Court the first applicant referred to her history as a student and then work history. The first applicant asked the Court to assist her to obtain permanent residency as the employer had treated her poorly and could no longer provide employment because it ceased trading. The first applicant offered to verify her skills as a restaurant manager and qualifications for employment if that would assist her eligibility. Her employer had made a mistake in failing to obtain approval and the applicants should not be punished for that error.

1. In reply, the solicitor for the Minister submitted that the applicants did not have standing to challenge the Tribunal's decision regarding the refusal to approve Gerber Foods Pty Ltd as an employer and it was not the function of this Court to revisit that decision or to review the merits of the Decision.

1. Section 256 of the FCFCOA Act permits a party to a proceeding to apply to the Court for review of the exercise of a delegated power by a Registrar. The power to delegate functions of the Court to the Registrars, (including the power to summarily dismiss an application) is to be found in s 254 of the FCFCOA Act.
2. If a party seeks to review a decision of a Registrar within the time permitted by the Rules, then the Court must conduct a hearing de novo and reconsider the application again applying the principles for assessing whether the applicants' claims have no reasonable prospects of success.
3. In AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 her Honour Judge Given said at [55]-[56]:

[55] The established principles relating to summary judgment can be summarised as follows, by reference to Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 and Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473:

(a) the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding;

(b) the assessment of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument;

(c) despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution; and

(d) the determination of a summary dismissal application does not require a mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. A critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial is required.

[56] The relevant principles make clear that in considering the Minister's summary dismissal application, the Court is not required to determine whether the decision of the Tribunal is affected by jurisdictional error. Rather, the task is to consider whether the case raises a "real or genuine dispute" as to any material fact that might reasonably be resolved in the applicant's favour: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 at [33], citing Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 at [132] per Gordon J, Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [4] to [6] per Finkelstein J and J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581 at [6] per Pagone J.

1. The discretion to summarily dismiss an application must be exercised with caution because it is an order made at a preliminary stage in proceedings, in the absence of a full and complete factual matrix and argument (see Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 and Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473). However, what is required is "a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial." (Cassimatis at [46], per Reeves J).
2. In this case a critical examination of the available materials shows that there is no real question of law or fact to be determined that might reasonably be resolved at a final hearing in the applicants' favour. There are no apparent errors of law or fact or other material error by the Tribunal that requires the application for judicial review to proceed to a final hearing on the merits. The claims made by the applicants in the application for judicial review filed 25 October 2023 have no reasonable prospects of success because the relief sought is futile and the Review Application must be dismissed.
3. In this case the applicants were not eligible for the visa because the proposed employer was not approved by the Minister. Clause 187.233(3) of the Sch 2 of the Regulations requires that the Minister approve the nomination. In the absence of approval, the applicants do not meet the primary criteria to qualify for the visa and the Decision shows that the Tribunal reached that conclusion in accordance with the correct construction of the Regulations. There was no error of law or fact in reaching that conclusion and there was no denial of procedural fairness by the Tribunal in making the Decision. The applicants were given the opportunity to comment on the absence of an approved nomination and were given a hearing to articulate any argument that they may have had to the contrary.
4. The application for judicial review is also futile because the proposed employer has been deregistered. Even if there was an error by the Tribunal in the Decision or some other reason for a final hearing, the Tribunal would be forced to affirm the decision of the delegate because the person who made the nomination is no longer a legal person capable of nominating the first applicant because it is deregistered and has ceased to exist (s 601AD Corporations Act 2001 (Cth)). In Patel v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1017 this Court reached the same conclusion.
5. The application for judicial review has no reasonable prospects of success and the Registrar was correct to summarily dismiss the application. The Review Application is dismissed with costs.

1. At the conclusion of submissions, the solicitor for the Minister sought costs of and incidental to the Review Application in the sum of $1,500.00. This is in addition to costs ordered by the Registrar on 20 March 2025. That sum is fair and reasonable in the circumstances of this application and is ordered to be paid by the applicants.

1. Pursuant to r 7.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the application for judicial review filed 25 October 2023 is amended to seek a writ of mandamus directed to the second respondent, requiring it to determine the applicants' application for review according to law.
2. The application for review filed 25 March 2025 is dismissed.
3. The applicants pay the first respondent's costs and disbursements of an incidental to the application for review fixed in the sum of $1,500.00.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.