Khan v Minister for Immigration and Citizenship [2025] FedCFamC2G 1916

1. Both parties relied on the Court Book.
2. The Registrar Review Application seeks the following orders:
   1. That this application be heard by a Federal Magistrate.
   2. That decision of the Administrative Appeals Tribunal made on 18th October 2022 be quashed.
   3. Cost be awarded to the applicant.

1. The Application contains the following grounds of review (Grounds of Review):
   1. A Breach of Natural Justice Occurred by Visa officere and Tribunal member (Ground 1)
   2. A Visa officere donot gave me chance to provide my explanition. (Ground 2)
   3. A Visa officere and tribunal member did not had required knowledge of scenrio. (Ground 3)
   4. A The visa offere and tribunal member did not did further research of the matter. (Ground 4)
   5. A Decision-Making Procedures Were Not Observed; (Ground 5)
   6. The Decision-Maker Did Not Have The Jurisdiction To Make The Decision; (Ground 6)
   7. The Decision Was Not Authorised By The Act; (Ground 7)
   8. The Decision Was An Improper Exercise Of The Act by visa officere and tribunal member. (Ground 8)
   9. There Was An Error Of Law made by tribunal member and visa officere. (Ground 9)
   10. The Decision Was Induced Or Affected By Fraud by both (Ground 10)
   11. There Was No Evidence To Justify The Decision; (Ground 11)
   12. The Decision Was Otherwise Contrary To Law. (Ground 12)
   13. Taking Into Account Irrelevant Considerations; (Ground 13)

1. The Applicant did not file any submissions in support of the Registrar Review Application.
2. The Applicant made oral submissions at the Hearing.
3. The Minister filed the Minister's submissions dated 5 September 2025.
4. The Minister's solicitor made oral submissions supplementing his written submissions at the Hearing.

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.[31]
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.[32] The critical question is whether the decision maker has acted in breach of an express or implied condition of the decision-making authority which results conferred by statute such that the purported exercise of that authority lacks the legal force attributed to it by the statute.[33]
4. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[34] 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".[35] Different kinds of error may overlap.[36] The categories are not closed.[37]
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.[38] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[39] It has been described as an "undemanding" standard.[40]

Employer Nomination Scheme Visas (Subclass 186)

1. The Employer Nomination Scheme Visa (Subclass 186) allows skilled workers, who are nominated by their employer, to live and work in Australia permanently.
2. 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.
3. 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 Part 186 to Schedule 2 of the Regulations.
4. Clause 186.223 of the Regulations provided (at the date of the Tribunal's 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 (Division 3.1), 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 3.05 of the Rules provides that a party may apply to the Court for the purposes of subsection 256(1) of the FCFCOA Act for review of the exercise of a power of the Court by a Registrar. Rule 3.06(1) of the Rules provides that the application for review of the exercise of power by a Registrar must be made within 21 days after the day on which the power is exercised. A person may apply for an extension of time within which to make an application for review pursuant to r 1.15 of the Rules.
5. Rule 3.08 of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo,[41] in other words, "anew" or "afresh".
6. Section 256(2) of the FCFCOA Act provides that on a review, the court 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.[42] 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.[43]

1. Section 143 of the FCFCOA Act provides relevantly that summary judgment may be given in relation to the whole or part of any proceedings where "the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding".
2. Rule 23.08 of the Rules provides that the Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.
3. The relevant principles are summarised as follows:

(a) the party seeking summary disposal bears the onus of persuading the court that the proceeding has no reasonable prospects of success and should be disposed of summarily;[44]

(b) "the enquiry required to be undertaken is whether there is a reasonable prospect of prosecuting the proceeding, not an enquiry directed to whether a certain or concluded determination could be made that the proceeding will necessarily fail"; [45]

(c) "it may be doubted that it is useful to adopt any gloss, paraphrase or lexicon as to the criterion of no reasonable prospect of success";[46]

(d) the word "may" in s 143 of the FCFCOA Act is used to indicate the conferral of power, rather than a discretion, such that if the criterion "no reasonable prospects of success" is satisfied, then the court is bound to exercise the power of summary disposal;[47]

(e) section 143 of the FCFCOA Act has lowered the bar for summary disposal from previous provisions;[48] and

(f) the power to summarily dismiss must be exercised with "caution".[49]

1. In Spencer v Commonwealth of Australia,[50] French CJ and Gummow J said in relation to 31A of the Federal Court of Australia Act 1976 (Cth) (which is expressed in similar terms to s 143 of the FCFCOA Act):[51]

The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. ...

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a 'fanciful' prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.

(Footnotes omitted)

1. This is a review of the Registrar's Decision dismissing the Applicant's Application on the basis that "the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding". As the Hearing is a hearing de novo, I consider the Minister's application for summary judgment (constituted by the Amended Response), afresh.
2. The decision under review was the decision of the Tribunal to refuse to grant the Applicants' Visas under s 65 of the Migration Act. The Tribunal found that the Applicant failed to satisfy the criteria under cl 186.223 of the Regulations as the Associated Nomination had not been approved. Accordingly, the Delegate's Decision to refuse the grant of the Visas was affirmed.
3. The affidavit of Courtney Catherine Pipa dated 4 September 2025 establishes that the Nomination visa for Tadele Felke, the Nominator, was refused on 1 June 2019. There was no evidence of any review of that decision. It follows that the Applicant cannot satisfy cl 186.223 of Sch 2 to the Regulations.
4. In Singh v Minister for Immigration and Border Protection,[52] (Singh) Mortimer J[53] 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:[54]

...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. Having regard to the decision in Singh as applied to the facts of the present case, the Tribunal's Decision was plainly correct. I am "satisfied that the [Applicants have] no reasonable prospect of successfully prosecuting the proceeding". It would be futile for the matter to be remitted to the Tribunal as the inevitable consequence of remittal would be dismissal of the application by the Tribunal. In these circumstances, it is appropriate to grant summary judgment in favour of the Minister.
2. For completeness, I do not consider that there is any substantive merit to the thirteen unparticularised Grounds of Review that are relied upon by the Applicants. Those grounds are expressed at a very high level of generality without engagement with the legislation or the underlying facts. In the circumstances of the present case, the absence of a valid and subsisting Nomination, meant that the "issues arising in relation to the decision under review" were limited, and the Applicants' complaints about methodology and process fail to grapple with that. I have found no breach of the statutory procedural fairness obligations. The Tribunal correctly concluded that the obligation to invite the Applicants to a hearing ceased pursuant to s 359C(1) of the Migration Act because the Applicants did not respond to its s 359A letter within the prescribed period.[55] Finally, I can see no substance to the claim of bias.

1. Having regard to the provisions and principles set out above, I am satisfied that the Applicant has no reasonable prospect of successfully prosecuting the Application for judicial review. In the circumstances and having regard to my conclusions on the substantive questions, the appropriate order is to dismiss the Registrar Review Application.

1. At the end of each party's submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $878 being less than the scale amount.[56] I am satisfied that the Minister is entitled to his costs in the proceedings on the basis that costs ought to follow the event.[57] I am further satisfied that it is appropriate to make an order for payment of the amount sought by having regard to the scale and the extent of work undertaken as evidenced by the Court file.
2. Because the third and fourth applicants are the subject of a litigation guardian order in favour of the Applicant, it is appropriate that my costs order be limited to the Applicant and second applicant.[58]

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Orders made by Judge Fary on 19 November 2019, Order 1.

[4] Orders made by Registrar Lindsay on 13 August 2025, Order 6.

[11] Being the third and fourth applicants.

[24] CB 154-164; ss 359C and 360 of the Migration Act 1958 (Cth) (Migration Act).

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

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

[33] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LDPT) at [2].

[34] Plaintiff S157/2002.

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

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

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

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

[42] 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] and [29].

[44] Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [45].

[45] Leach v Burston [2022] FCA 87 (Leach v Burston) at [36].

[46] Quach v Commissioner of Taxation [2019] FCA 1729 at [12].

[48] Noting s 143(3) of the FCFCOA Act.

[49] Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24].

[50] [2010] HCA 28; (2010) 241 CLR 118.

[52] [2017] FCAFC 105; (2017) 253 FCR 267.

[53] As her Honour was then. With whom Jago and Bromberg JJ, agreed.

[56] See Division 1 of Part 3 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

[57] Compare Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[58] Plaintiff B9/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCAFC 27 at [10].