Kaur v Minister for Immigration and Multicultural Affairs

1. The Minister filed written submissions as follows:

(a) Written submissions in opposition to reinstatement application dated 23 April 2025; and

(b) Written submissions in opposition to review of Registrar Cummings decision made on 28 April 2025 dated 19 May 2025.

1. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
2. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[15]
3. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[16]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[17] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[18] Different kinds of error may overlap.[19] The categories are not closed.[20] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[21]
5. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[22] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[23] It has been described as an "undemanding" standard.[24]

1. Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
2. The criteria that the Applicant was required to satisfy for the grant of a Permanent Employer Sponsored (Class EN) (Subclass 186) visa are set out in cll 186.1 to 186.611 in Schedule 2 of the Regulations.
3. Clause 186.223 provided (at the date of the Decision):

186.223

1. The position to which the application relates is the position:

   1. nominated in an application for approval that:
      1. identifies the applicant in relation to the position; and
      2. is made in relation to a visa in a Temporary Residence Transition stream; and
   2. in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

2. The Minister has approved the nomination.

3. The nomination has not subsequently been withdrawn.

3A. Either:

1. there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

2. it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

3. The position is still available to the applicant.

4. The application for the visa is made no more than 6 months after the Minister approved the nomination.

1. Section 254 of the FCFCOA Act provides for the making of Rules of Court for the delegation of any of the powers of the Federal Circuit and Family Court of Australia (Division 2) to a delegate which includes a Senior Registrar or a Registrar.
2. Division 21.1 of the Rules lists the powers of the Court that are delegated to a delegate. The powers delegated to Registrars includes (at item 58 of schedule 21.1), the power provided for in r 13.13 of the Rules to order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
3. Section 256(1) of the FCFCOA Act provides that a party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under s 254 may apply to the Court for review of that exercise of power. The application for review must be made within the time prescribed under the Rules or within any further time allowed in accordance with the Rules.
4. Rule 21.02(1) of the Rules provides that for the purposes of subsection 256(1) of the FCFCOA Act, an application for review of the exercise of a power by a Registrar must be made within 7 days. Rules 21.02(2)(a) provides that the time prescribed by r 21.02(1)(a) 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.
5. Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo,[25] or in other words, "anew" or "afresh".
6. Section 256(2) of the FCFCOA Act provides that on a review, the court may "and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised". On a successful review, the court may set aside the exercise of the delegated power and make consequential orders to unwind the effect of the exercise of that power.[26] Where the review is dismissed, the order made by the delegate continues as a valid and authorised exercise of judicial power from the time of the exercise of that delegated power.[27]

1. The time prescribed by the legislative provision should not be ignored.[28]
2. The court should not grant an extension unless it is positively satisfied that it is "proper" to do so. Factors relevant to the exercise of the discretion to extend time include:[29]

(a) the length of the delay;

(b) the explanation for the delay;

(c) the prejudice to the respondent as a result of the delay;

(d) public interest; and

(e) the merits of the underlying application.

1. Generally speaking, the longer the delay, the more persuasive the explanation needs to be,[30] such that where the extension required is for a comparatively short period, a less persuasive explanation may be required.[31]
2. Absence of prejudice is not sufficient, in itself, to justify an extension of time.[32]
3. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 the High Court held that the Trial Judge had not committed jurisdictional error by forming the view that the substantive application lacked merit in the context of an application for an extension of time under s 477(2) of the Migration Act for the grant of remedy under s 476 of the Act. The extent and manner of consideration of the merits is a matter for the court,[33] which may include "impressionistic" assessment.
4. In WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736, in relation to a delay of 26 months, Derrington J stated (at [41]-[44]):

There exists a clear public interest in the prompt disposition of administrative matters and, in particular, of allegations that officers of the Commonwealth have acted in excess of their jurisdiction: MZABO v Minister for Immigration and Border Protection [2016] FCA 980 [5]. In Ex parte Marks, McHugh J said in relation to proceedings in which prerogative writs were sought (at 474 [15]):

The public interest requires that there be an end to litigation about the efficacy of such acts or decisions.

More specifically, the Minister has a legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 2020 [89]; Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929; (2001) 192 ALR 71 [62].

In the circumstances of this case where the delay is extraordinary and not adequately unexplained, it would set at naught the Minister's legitimate concerns in the proper disposition of applications under the Act if an extension of time were granted. In the case of decisions made under the Act in respect of which the time for seeking review has long passed, the granting an extension of time would have the consequence that the right to seek review may be resurrected at any later time thereby necessitating a diversion of resources in circumstances where those administrative officers who were familiar with the matter may have moved on. It can be assumed that the limitation of time in which to make an application for review of the Tribunal's decision has been set by the legislature with the intent that it generally balances the interests of applicants in seeking review with the interests of the Minister and his Department in finalising the decision-making obligations under the Act. Although s 477A(2) enables the Court to extend time, the general temporal limitation cannot be entirely ignored or treated as merely provisional.

The prejudice which the Minister would suffer in this case in relation to the orderly and proper administration of the Act is a further factor which weighs heavily in favour of rejecting the application for an extension of time.

1. Rule 13.06(1)(c) of the Rules provides that if a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may make various orders, including, in the case where the absent party is an applicant, dismiss the application.
2. Rule 17.05(2)(a) of the Rules provides that the Court or a Registrar may vary or set aside a judgment or order after it has been entered if it was made in the absence of a party.
3. Factors relevant to the exercise of the discretion[34] to set aside a judgment or order closely correspond[35] to those relevant to an extension of time, and include:

(a) length of delay in seeking reinstatement;[36]

(b) the explanation for the absence of the party;[37]

(c) the prejudice to the respondent as a result of the reinstatement;

(d) public interest; and

(e) the merits of the underlying application.[38]

1. In CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 (CAL15), Mortimer J (as her Honour was then) observed at [4], in the exercise of the discretionary power to reinstate a proceeding which has been summarily dismissed for non-attendance, three factors are consistently considered; first whether the applicant has an adequate explanation for the non-appearance; second, whether there is any prejudice to the Minister if the matter is reinstated, and third, whether the applicant has an arguable case on judicial review.
2. Her Honour observed at [4]:

The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.

1. Her Honour held (at [8]) that the court was only required to consider the merits of the proposed grounds at a reasonably impressionistic level and was not required to conduct a full hearing. More recent authority confirms in relation to like discretionary decisions, the extent and manner of consideration of the merits is a matter for the court.[39]
2. The relevant authorities only operate as a guide to the exercise of the court's discretion,[40] as each case must ultimately turn on its own facts.

1. The Applicants' Review Application was made out of time.
2. The Orders under Review were made by Registrar Cummings on 28 April 2025. The 7 day period for review provided for by Rule 21.02(1)(a) expired on 5 May 2025. The Review Application was filed on 9 May 2025, which is 4 days out of time.
3. I made Orders at the hearing granting leave to the Applicants to amend the Review Application to include an application to extend the time for review.
4. I turn now to the merits of the Application for an extension of time (for the Review Application).
5. The length of delay in the present case is 4 days, which is not significant in itself, but it arises in a context where the underlying matter before the Registrar was the Applicants' Application to set aside the Orders made by Registrar Cummings on 28 April 2025 under r 17.05(2)(a) of the Rules (Reinstatement Application), which was the result of the Applicants' non-attendance at the Callover on 10 July 2024.
6. The Applicants' explanation for the delay in filing the Review Application is that they were not aware of the time limit (to review the decision of Registrar Cummings made on 28 April 2025). There appears to also have been some confusion as to which document to file. I don't place significant weight on the delay of 4 days.
7. The prejudice to the Minister by the delay in filing the Review Application is not particularly significant in the instant case, but he has a "legitimate interest in the timely disposal of applications for visas and decisions concerning the cancellation of visas".
8. The prejudice to public interest as a result of the delay is that the default, again is not particularly significant in the instant case, nevertheless the consequent additional burden on the Court is not a matter that cannot be ignored in a context where there is a significant backlog of cases, and a compelling need for the just and efficient resolution of cases. As a general proposition, the efficient management of cases is promoted by adherence to time limits.
9. The prejudice to the Applicants by refusing an extension is that their Reinstatement Application will not be heard on its merits. This consideration is tempered by the fact that the merits of the Application for reinstatement is a matter that I will take into account in the exercise of discretion.
10. I turn then to the merits of the Application for the Review Application. Given that a review of a Registrar's decision is by way of hearing de novo,[41] this factor requires me to consider the merit of the Reinstatement Application having regard to the principles set out in CAL15, which in turn requires me to consider, amongst other matters, the merits of the underlying application for judicial review.
11. The first matter that I would be required to consider on the Reinstatement Application is the length of delay in seeking reinstatement. The Orders of Registrar Cummings were made on 10 July 2025, and the Application for reinstatement was made on 15 July 2025. I consider the Applicants' Reinstatement Application was made in a timely manner.
12. The second matter that I would be to consider on the Reinstatement Application is the Applicants' explanation for their failure to appear. The Applicants' explanation was that the Callover listing went into their spam folder. I proceed on the basis that the Applicants have an adequate explanation for their failure to appear.
13. The third matter that I would be required to consider on the Reinstatement Application is the prejudice to the Minister as a result of reinstatement. I do not consider there to be any significant prejudice to the Minister as a result of reinstatement.
14. The fourth matter that I would be required to consider on the Reinstatement Application is the public interest. Again, prejudice to the public interest is not particularly significant in the instant case.
15. The fifth matter that I would be required to consider on the Reinstatement Application is the merits of the underlying application.[42]
16. Before turning to the four grounds of review it is worth noting the basis for the Tribunal's dismissal of the Applicants' Application for review. The Tribunal affirmed the Delegate's Decision on the basis that the Applicant did not meet cl 187.233.
17. Clause 187.233 sets out the mandatory requirement that an applicant for a Regional Employer Nomination (Subclass 187) (Regional Sponsored Migration Scheme) visa must have a subsisting and valid employer nomination.
18. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267, Mortimer J (as her Honour was then) (with whom Jago and Bromberg JJ, agreed) considered a contention that an appeal from a decision dismissing an application for judicial review of a decision not to grant a Subclass 187 Visa was futile, because the employer's nomination had been refused by the Minister. While it was unnecessary for her to decide, Mortimer J concluded that even if error had been established, remitter to the Tribunal would have been futile:

...The contention pressed was that, on any remitter to the Tribunal, Harrico could submit another nomination in respect of the same position and in respect of the appellant while the matter remained before the Tribunal. I do not accept that submission. The refusal of Harrico's nomination by the Minister, and the absence of any merits review decision overturning it, is fatal to the appellant's current RN visa application.

...

...In my opinion the criterion [in cl 187.233(i)] imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate's decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 "position nominated in an application for approval that seeks to meet the requirements of" reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The "position" referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant's declaration in the visa application is directed.

The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the "time of decision" criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]- [27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.

The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant's construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a "once off" process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).

1. I turn then to the four grounds of review.
2. Ground 1 is:

I seek judicial review under clause 187.223 as I am eligible to supply Federal of an evidence of applied nomination in my nominated occupation when given chance to apply for judicial review.

1. It is unclear from Ground 1 what error in the Tribunal's Decision is alleged. The Tribunal's Decision was that the First Applicant did not satisfy cl 187.223 because the employer's (Shahan Australia Pty Ltd) application for nomination was refused. It followed that the mandatory criterion in clause 187.223 was not satisfied and that the Tribunal was bound to make the decision that it did.
2. There is no substantial merit to Ground 1.
3. Ground 2 is:

Also as stated under the Ministerial Direction 69, I can present my claims of tie ups with my home country so that my refusal given by review member can be demolished.

As per section 499 of the Migration Act my past immigration history has not been well considered by the Member and I never breached any of the visa conditions.

1. Grounds 2 and 3 concern Ministerial Direction 69 which was given under s 499 of the Migration Act.
2. The difficulty for the Applicants is that because the Applicant did not satisfy the mandatory criterion in cl 187.223, there was no call for the Tribunal to consider the other matters that are set out in Ministerial Direction 69.[43]
3. There is no substantial merit to Grounds 2 or 3.
4. Ground 4 is:

I would like to make a humble request to please grant me a chance to seek judicial review to support review application of my refusal given by the Review Member.

1. Ground 4 does not identify any jurisdictional error or arguable jurisdictional error.
2. There is no substantial merit to Ground 4.
3. I return to the question of whether the time for the Review Application ought to be extended. Having regard to the matters set out at [65] to [92], above I am not satisfied that the 7 day time limit for review of the time for review of the orders made by Registrar Cummings on 28 April 2025 ought to be extended. While the delay in filing the Review Application is relatively short, and the prejudice to the Minister and the public interest is not particularly significant, the difficulty confronting the Applicants is that the Reinstatement Application would appear to have no reasonable prospects of success having regard to the underlying merit of their application for judicial review in circumstances where the employer nomination had been rejected.

1. In the premises, the Applicants' Application for an extension of time to review the Registrar's decision and the Applicants' review application, must be dismissed.

1. I shall hear the parties on the question of costs.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 14 May 2025, Order 1.

[5] Affidavit of Jesse Slankard affirmed on 23 April 2025.

[15] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

[16] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O'Callaghan JJ at [17].

[17] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

[18] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 (LPDT) at [3].

[19] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf) at [82].

[23] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].

[24] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).

[25] Bechara v Bates [2021] FCAFC 34; 286 FCR 166 per Allsop CJ, Markovic & Colvin JJ at [17] - [31].

[26] Robson v Body Corporate for Sterling at Kings Beach CTS 2942 [2021] FCAFC 143; (2021) 286 FCR 494 per Allsop CJ (Markovic & Derrington JJ agreeing) at [2] - [4] , [18] - [29].

[28] Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550

[29] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344 (per Wilcox J at pp 348-349); compare Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] HCA 28; (2022) 403 ALR 604 per Kiefel CJ, Gageler, Keane and Gleeson JJ (at [21]) and Gordon, Edelman and Steward JJ (at [40]).

[30] Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 195.

[31] SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6].

[32] SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 [6].

[34] FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50].

[35] AVC19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCA 1752 at [3] to [5] per Davies J

[36] AYF15 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FedCFamC2G 10 at [8]; AHN17 v Minister for Immigration & Border Protection [2018] FCA 1598 at [33].

[37] MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 at [7].

[38] CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [3].

[40] AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32].

[41] Allison v Murphy [2021] FCAFC 232 at [11].

[42] CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [3].

[43] Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 at [59] - [61].