Khan v Minister for Immigration and Citizenship

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. This matter is a review of a decision, made by the Registrar of this Court, to summarily dismiss an application for judicial review made by Mrs Kiran Khan, her husband and four children.
2. In short, the background to the matter is as follows:

(a) on 1 May 2018, Mrs Khan applied for an employer nomination visa[1];

(b) on 15 August 2019, the nomination lodged by Mrs Khan's employer (Maxpress Trading Company) was refused.[2] On 25 October 2022, that refusal was affirmed by a differently constituted Tribunal.[3] In the more than 2 years and 10 months since the affirmation, no judicial review was sought of that decision;

(c) on 25 September 2019, a delegate of the then Minister for Home Affairs refused Mrs Khan's employer nomination visa because, at the time of the decision, she did not have an approved nomination employer; a fact fatal to the application for her visa, and one that could never be cured;[4]

(d) in April 2012, Mrs Khan ceased working for Maxpress Trading Company;[5]

(e) on 30 May 2023, the Tribunal affirmed the Delegate's decision for the same reason that Mrs Khan did not have an approved nomination;[6]

(f) on 26 June 2023, Mrs Khan and her family sought judicial review of the Tribunal's decision;

(g) on 8 August 2025, the Registrar dismissed the Applicants' application for judicial review of the Tribunal's decision. The Registrar was satisfied the application to this Court had no "reasonable prospect of successfully prosecuting their court application"; and

(h) on 22 August 2025 the Applicants applied for review of the Registrar's decision. Whilst the application was made 7 days late, the Minister consented to an extension of time. It is that application with which these reasons are concerned.

1. This review is a hearing de novo.[7] That is to say, this decision is not concerned with correcting any error on behalf of the Registrar but is "a fresh hearing which may result in a different order having the effect of undoing or revoking the decision of the registrar."[8]
2. For the reasons that follow, this Court summarily dismisses the application for judicial review filed on 26 June 2023.

1. Section 65 of the Migration Act 1958 (Cth) (Act) empowers the Minister (and their delegates by extension)[9] to refuse a valid visa application where the prescribed criteria for the grant of the visa are not satisfied.
2. The Migration Regulations 1994 (Cth) (Regulations) mandate that at least one member of a family unit must satisfy the primary criteria (i.e. the Primary Applicant).[10] The Applicants' applied for a Nomination Visa within the Temporary Residence Stream;[11] as such, "the criteria in Subdivisions 186.21 and 186.22 [of the Regulations] are the primary criteria for the grant of the visa".[12]
3. Clause 186.223 of Schedule 2 of the Regulations (Clause 186.223), reads as follows:

(1) The position to which the application relates is the position:

(a) nominated in an application for approval that:

(i) identifies the applicant in relation to the position; and

(ii) is made in relation to a visa in a Temporary Residence Transition stream; and

(c) 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:

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

(b) 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.

(4) The position is still available to the applicant.

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

1. The secondary criteria relates to applicants who are members of the same family unit as an individual who satisfied the primary criteria (i.e. the Secondary Applicants).[13] Clause 186.311 of Schedule 2 of the Regulations (Clause 186.311) is one such criteria, and reads as follows:

(a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

(b) made a combined application with the primary applicant.

1. Mrs Khan (Primary Applicant) applied for an Employer Nomination (Permanent), subclass 186 (employer nomination scheme) visa (Nomination Visa) on 1 May 2018. Her husband and four children (Secondary Applicants) were included in the application as migrating members of the same family unit and their visas were thus dependent on the acceptance of the Primary Applicant's.[14]
2. The Primary Applicant was nominated for the position of Contract Administrator by her employer Maxpress Trading Company Pty Ltd (Maxpress/Nominator). The Primary Applicant commenced employment with the Nominator on 5 May 2014. [15]
3. On 15 August 2019, the nomination lodged by the Nominator was refused. The Primary Applicant was notified that the refusal meant her visa application could not be approved and was invited to comment.[16]
4. The Primary Applicant accepted this invitation; submitting, by way of written statement that:

(a) she had been granted a Temporary Work (Skilled) (subclass 457) visa, with the same Nominator;

(b) neither her nor her employer had received an invitation to comment on adverse information received by the Department; this ostensibly lead to the refusal of her nomination;

(c) she had satisfied the requirement of the visa that she hold a "457 visa at the time of lodgement and must have done two years (with the same 457 sponsor)";

(d) her sponsor was barred from sponsoring further individuals between the period 8 January 2016 to 8 January 2018; her application was thus made "after the restriction period";

(e) she had "no control over the actions of [her] employer and guess it is reasonable to disregard the adverse information recording considering my family and the compelling and compassionate circumstances which arise from the affect it [would] have on" them and herself;

(f) the adverse information arose from the naivety of her employer, specifically, "an issue regarding recordkeeping that happened unintentionally" and "happened only due to him being a new sponsor";

(g) the contravention "was not [an] intentional serious contravention" and that "all the records were kept as hard copies at Maxpress for that time period because computers were not operational due to renovations";

(h) the "mistake happened years ago, and no mistake has been done since then";

(i) her "employer took all reasonable steps to ensure that [the mistake] never happened again"; and

(j) "because of this all the education of my kids is getting affected". She further requested "some time to let [her] elder son complete... year 12 from Australia as most of [his] education has been conducted here".[17]

1. On 25 September 2019, the Primary Applicant was notified that her Nomination Visa had been refused on the basis that the nomination had been refused by the Minister, and thus, that she failed to satisfy Clause 186.223(2) of the Regulations. The Applicant's submissions could not cure this defect.[18]
2. Consequently, the Secondary Applicants were not members of the same family unit as an individual holding a Nominator Visa, and their applications were refused pursuant to Clause 186.311(a).[19]
3. On 10 October 2019, the Applicants applied to have the Delegate's decision reviewed by the Tribunal. The Application was acknowledged by the Tribunal on 15 October 2019.[20]
4. In April 2021, the Primary Applicant ceased to work for the Nominator.[21]
5. On 27 April 2023, the Applicants were sent an invitation to comment on or respond to information.[22]
6. On 28 April 2023, the Applicants were invited to attend a hearing, scheduled for 25 May 2023.[23]
7. On 1 May 2023, the Applicants responded to the Tribunal's correspondence with a completed Response to Hearing Invitation.[24]
8. On 11 May 2023, the Applicants responded to the invitation to comment with a brief statement in which they submitted that they were "unaware of the circumstances and the information that would have provided and the causes of the aforesaid refusal and subsequent affirmation by the AAT as [they] had never been provided any information from Maxpress [and] had never been engaged before, during or after the steps and processes involved in the aforesaid application... and subsequent appeal before the AAT". They subsequently submitted that they had "always been fulfilling all the requirements concerning [their] visas".[25]
9. On 18 May 2023, the Applicants supplied further information to the Tribunal. In this statement, the Primary Applicant asserted that:

(a) she had continued to work for Maxpress until April 2021, at which time their employer began experiencing financial difficulties precipitated by the COVID-19 pandemic;

(b) they had "always been in the approved employment for more than six years";

(c) they were unaware "of any adverse information based on which the... [Department] had refused the nomination". Their confusion appeared to stem, in part, from the fact their employers nomination ban had, by the time of their application, ended;

(d) she, as well as her family, "inherently believe that after spending nearly 14 years here in Australia as law abiding residents, that Australia is our home"; and

(e) she, and her family, were "hardworking... [and] respect[ed] the Australian cultural values that transcend multiculturalism and provide freedom and a secure environment for [her] children".[26]

1. On 25 May 2023, the hearing went ahead as scheduled, with the Primary Applicant, and three of the Secondary Applicants in attendance. They were represented by Sujeevan Kumar Peru, a registered migration agent.[27]
2. On 30 May 2023, the Applicants were notified that the Tribunal had decided to affirm the Delegate's decision.[28] Whilst accepting that the Primary Applicant was "a diligent employee who worked in the nominated position for a significant period of time", there was nothing to indicate the Applicant was "the subject of an approved nomination" at the time of the refusal. Thus (as with the Delegate) the Tribunal was not satisfied the Primary Applicant met Clause 186.233; accordingly, the Secondary Applicants did not satisfy clause 186.311.[29]

1. On 26 June 2023, the Applicant filed an application with this Court to have the decision of the Tribunal judicially reviewed (Originating Application).
2. The Originating Application was filed within the 35-day time limit prescribed by the Act,[30] and brought pursuant to section 476 of the Act, which confers upon this court, in relation to migration decisions, the "same original jurisdiction as the High Court under s 75(v) of the Constitution". That is, the Court may undertake judicial review, in respect of matters "where a writ of mandamus or prohibition, or an injunction, is sought against an officer of the Commonwealth."[31]
3. The Originating Application contained three grounds of review and sought the following orders:

(1) an order that the Tribunal's decision be quashed (writ of certiorari);

(2) an order directing the Tribunal to redetermine the application according to law (writ of mandamus); and

(3) costs.

1. On 4 July 2023, the Minister filed a response which sought, among other orders, that the matter be summarily dismissed (Summary Dismissal Application) pursuant to rule 13.13 of the then Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules). An amended response was filed on 21 July 2023.

1. On 2 July 2025, a Registrar of this Court made orders programming the Summary Dismissal Application for hearing on 8 August 2025. The orders directed the parties to file submissions. Orders were also made amending the name of the First Respondent to the Minister for Immigration and Citizenship.
2. On 16 July 2025, the Minister complied with the orders by filing the Affidavit of James Adam Michelon alongside written submissions. Annexed to the Affidavit was a screenshot of the Applicants records, held in the Integrated Client Services Environment (ICSE) database, which is maintained by the Department.
3. The Applicants made no further submissions.
4. On 8 August 2025, the Registrar acceded to the Minister's application to summarily dismiss the Originating Application (Dismissal Decision). The Registrar was satisfied that the Applicants did not have reasonable prospects of successfully prosecuting their application for judicial review in this Court.

1. On 22 August 2025, the Applicants applied to have the Registrar's use of the delegated summary dismissal power reviewed (Review Application).
2. The Applicants seek orders that:

(a) the Registrar's orders be set aside (writ of certiorari);

(b) the application for judicial review be listed for further case management and reviewed by a Judge; and

(c) the Court makes other orders it deems appropriate.

1. On 31 August 2025, the matter was listed for hearing before this Court as presently constituted.
2. On 1 September 2025 the 2021 Rules were replaced by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 Rules).
3. Also on 1 September 2025, this Court informed the parties that the Review Application was out of time. The parties were provided with an opportunity to file written submissions addressing each of the factors relevant in the exercise of the Court's discretion to extend the time for the filing of the Review Application.
4. The Application was brought 14 days after the Summary Decision and thus, was made 7 days outside the 7-day time limit prescribed by the Rules.[32] Via an email sent by the Minister on 2 September 2025 (and reiterated in the hearing), the Minister consented to an extension of time; this was in recognition of the commencement of the 2025 Rules, which extend this limitation period to 21 days.[33] The concession was consistent with the First Respondent's obligations as a Model Litigant.
5. On 8 September 2025, the First Respondent sought the following orders:

a) The application for summary dismissal under r 13.13(a) of the 2021 Rules in the amended response filed on 21 July 2023 be substituted for an application for summary judgment under r 23.08(1)(a) of the 2025 Rules. > > b) Pursuant to r 1.10 of the 2025 Rules, the requirements in rr 8.29 and 8.31 of the 2025 Rules for the filing and service of a further amended response be dispensed with.

6. The additional orders were necessary because of the commencement of the 2025 Rules. The first order was made without objection by the Applicants. In respect of the second order, the Applicants contended that they had been confused by the emails relating to the First Respondent's submissions and, because of financial hardship, they were prevented from obtaining legal advice. The Court as presently constituted noted that the amendments were technical in nature and did not change the substance of First Respondent's amended reply filed on 21 July 2023. The Court as presently constituted granted the second order because it was satisfied that that the Applicants suffered no prejudice if the requirements of filing and service were dispensed with.

1. On 9 September 2025, the Review Application was heard by this Court in the Melbourne Registry. The:

(a) First and Second Applicants appeared virtually, assisted by an Urdu interpreter; and

(b) Minister was represented virtually by James Michelon.

1. At the commencement of the hearing, the Court explained to the Applicant that:

(a) the Court cannot set aside the decision of the Tribunal unless there is an arguable case of jurisdictional error. The main categories of jurisdictional error were explained; and

(b) before the Court could consider the issue of jurisdictional error, it was necessary to determine whether to grant the Applicant an extension of time to file the review application.

1. Noting that the Primary Applicant was unrepresented, the Court gave the Primary Applicant and her husband an opportunity to elaborate on her grounds of review and to outline any other concerns she might have with the Tribunal's decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection.[34]
2. Before the Court, the First and Second Applicant's made submissions in support of the grounds for review disclosed in the Originating Application. Mr Michelon relied on the Minister's written submissions.

1. 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.[35]
2. Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides:

...

(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 Rules of the Court changed after the Registrar's decision. Accordingly, the Court's power to give summary judgment is now provided for in rule 23.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), which reads as follows:

**(**1) The Court may order that judgment be given against a party if the Court is satisfied that:

(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b) the proceeding is frivolous or vexatious; or

(c) no reasonable cause of action is disclosed; or

(d) the proceeding is an abuse of the process of the Court; or

(e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

(2) If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not dismissed.

(3) If an order is made under subrule (1) giving judgment for the applicant against the respondent for the whole or part of the applicant's claim, a respondent who has a cross-claim against the applicant or some other party may:

(a) continue to prosecute the cross-claim against the applicant or other party; and

(b) apply to the Court for an order staying execution on or enforcement of the judgment until the respondent's cross-claim is determined.

1. In Patel v Minister for Immigration and Citizenship,[36] her Honour Judge Mansini reviewed a Registrar's decision to summarily dismiss an application for judicial review on the basis that it lacked a reasonable prospect of success. Her Honour held:

[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...

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

1. The Court as presently constituted respectfully adopts her Honour's reasoning.

1. In their Originating Application, the Applicant sought judicial review on the following grounds:
   1. The Administrative Appeals Tribunal (Tribunal) failed to provide the Applicants procedural fairness in the matter, thereby falling into jurisdictional error.

(a) By means of section 360 of the Migration Act 1958 (Cth), the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising on the decision under review. The obligation to invite the applicant to attend must be meaningful in the sense that it must provide the applicant with a real chance to present their case.

(b) There was a want of procedural fairness in the manner in which the Tribunal conducted the hearing of the application.

(c) The Tribunal had limited engagement with the Applicants throughout the hearing and constrained in the exploration of the evidence and surrounding circumstances thereby appearing predisposed in their decision making.

(d) In light of the Tribunal's limited analysis of the facts and circumstances relating to the application for review, the Tribunal failed to afford the Applicants procedural fairness in the matter.

2. The Second Respondent failed to take into account a relevant consideration or failed to have proper regard to the evidence before it.

(a) The Tribunal observed at paragraph 15 of its decision:

(i) The application for approval of the nominated position made by MAXPRESS TRADING COMPANY PTY LTD (the nominator) was refused by a delegate of the Minister.

(ii) The nominator sought a review of that decision, but it was affirmed by the Tribunal on 25 October 2022.

(iii) This means that the nominator's application for the nominated position has not been approved.

(b) The Tribunal observed further at paragraph 17 of its decision "[t]he applicant explained that she had no understanding of the reasons for the nomination decision being refused by the delegate and the Tribunal's decision to affirm the primary decision for the nominator. She said that the nominator had never explained to her what had happened with the nomination application.";

(c) There was insufficient engagement and consideration by the Tribunal as it failed to explore the circumstances surrounding the refusal of the nomination by the First Respondent, the subsequent review of this decision by the nominator, and any potential error surrounding this refusal as purported by the Applicants.

(d) The Tribunal failed to actively question whether there was merit to the Applicants assertions with respect to a lack of awareness surrounding the refusal and their capacity to take the necessary steps to rectify this error. The Tribunal thereby failed to give proper consideration to the evidence before it.

(e) The Tribunal further failed to give appropriate consideration to the serious detrimental impact the refusal in the context of the Applicant's personal circumstances would have on the Applicants.

3. The Second Respondent failed to give the matter 'proper, genuine and realistic consideration;' in circumstances where the decision-maker must engage in an 'active intellectual process:' Singh v Minister for Home Affairs (2019) 267 FCR 200 at [30]; cf Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45].

(a) The decision of the Tribunal provided limited exploration of the issues and circumstances surrounding the application. The Tribunal failed to explore the reason/s for the refusal of the nomination or to explore further with respect to the circumstances which led to the refusal of the applications.\

(b) The Tribunal also failed to explore the possibility of alternate nominations or provide the Applicants with the opportunity to comment in this regard. The Tribunal therefore failed to give proper, genuine and/or realistic consideration to the matter and evidence at hand

39. ... it 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.

1. However, in accordance with the approach taken in Patel (and other similar matters) it is not necessary for this Court to engage in a detailed consideration of the grounds advanced by the Applicants, as would be required in substantive judicial review hearing.
2. That is because it is sufficient to outline a series of indisputable facts (themselves not contested by the Applicants) which make clear this matter does not involve a real or genuine dispute, nor one capable of being resolved in the Applicants' favour.

(a) first, the refusal of the nomination is distinct from the refusal of the visa. A delegate refused the nomination. The Tribunal affirmed that refusal. The Nominator never sought judicial review of that affirmation. It is true that nothing that occurred in relation to the refusal of the nomination is the fault of the Applicants. They are innocent victims of that process. However, the fact remains that the Applicants had no standing to seek review of the nomination refusal, the responsibility to pursue such a review lay solely with the Nominator.[37] For whatever reason, no such review was sought in the more than 2 years and 10 months since the affirmation decision of the Tribunal;

(b) second, the First Applicant ceased working for the Nominator in April 2021; and

(c) third, in the context of the Tribunal review of the Delegate's decision, the fact that the employer nomination had been refused and then affirmed (that affirmation not having been challenged) was a relevant and determinative factor. Put another way, the Tribunal was correct to apply Clause 186.223 as it did in finding that the Delegate's visa refusal decision must be affirmed for want of the First Applicant being the subject of an approved nomination.

1. The above indisputable facts mean that, even if the Applicants could successfully establish error on behalf of the Tribunal, the question of futility would render such a finding nugatory. Remittal would be futile because the result would have to be the same. This is because at the relevant time the Primary Applicant did not have an approved employer nomination (a fact conceded by her). Nothing can cure this deficiency: the Delegate and the Tribunal made the only decisions open to them.
2. Although it is unnecessary to do so (for the reasons explained above), for completeness, the Court has considered the three grounds for judicial review contained in the Originating Application. The Court has also reviewed the reasons given by the Registrar in relation to the grounds for review. The Court endorses those reasons and is independently satisfied that the Applicants do not have a reasonable prospect of proving that the Tribunal's decision is affected by jurisdictional error. Nothing submitted to this Court by the First and Second Applicants alters the Court's view about the Applicants' prospects of success.
3. During the hearing the Court raised with the First Respondent a concern that the Tribunal's decision to conduct the hearing via telephone on its own motion, arguably breached the statutory requirement that hearings be conducted in public, unless it is impracticable to do so or unless a private hearing is justifiable on public interest grounds.[38] In answer the Minister submitted that the futility issue (outlined above) renders a substantive consideration of this possible error otiose.

1. Because there is "no real or genuine dispute that might reasonably resolved in" the Applicants' favour, this Court is satisfied they have no reasonable prospect of success in seeking to have the Tribunal's decision quashed and remitted.
2. Accordingly, the application for judicial review is summarily dismissed in accordance with section 143 of the FCFCOA Act and r 23.08(1)(a) of the Rules. Consequently, the Tribunal's decision stands. The Court will hear the parties on costs.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns.

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

[8] 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].

[9] See Migration Act 1958 (Cth) ss 496-7.

[10] Migration Regulations 1994 (Cth) sch 2 sub-div 186.2 note.

[12] Migration Regulations 1994 (Cth) sch 2 sub-div 186.2 note.

[13] Migration Regulations 1994 (Cth) sch 2 sub-div 186.3 note.

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

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

[32] Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 21.02(1).

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

[34] [2019] FCA 600, [7].

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

[36] [2025] FedCFamC2G 921, citing AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368, [33] and the cases cited therein.

[37] Migration Act 1958 (Cth) ss 338(9), 347(2), as at 15 August 2019; Migration Regulations 1994 (Cth) regs 4.02(4)(e), 4.02(5)(d), 5.19, as at 15 August 2019.

[38] Migration Act 1958 (Cth) s 365, as at 30 May 2023.