Ng v Minister for Immigration and Citizenship [2026] FedCFamC2G 73

1. The Applicants come to this Court seeking a declaration that their subsequently refused visa application was never valid by reason of their lack of knowledge and/or indifference to an alleged fraud committed by their migration agent.
2. The substantive application was filed some 55 days outside of the statutory timeframe.
3. In the course of the proceedings, the Applicants sought a transfer of the proceedings to the Federal Court of Australia.
4. These reasons explain why the Applicants are not allowed more time to make the substantive application.

1. The Applicants are citizens of Malaysia.
2. On 29 January 2018, Mr Billy Weng Khuan Ng (the primary Applicant) applied for a regional employer nomination (class RN) (subclass 187) visa. The application named his wife and child as the secondary Applicants being members of his family unit. The nominated occupation was Café or Restaurant Manager and the nominating business was listed as Trustee for Palace Holdings Unit Trust, trading as QBar on Sydney. There was no reference to a nominated representative or agent on the original application form. Nominated contact details were, primarily, "palacehotelmackay@....com" and a residential and email address were also provided for the primary Applicant.
3. On 16 April 2019, the Department of Home Affairs wrote to the primary Applicant at the "palacehotelmackay@....com" email address and invited him to comment on adverse information that indicated he did not satisfy cl.187.213 of the Migration Regulations 1994 (Cth) (Regulations). In particular, public interest criterion 4020 (PIC 4020), because a departmental officer had conducted a site visit and was notified that the nominating business had not lodged a nomination for the primary Applicant. The primary Applicant was afforded 28 days to comment.
4. On 15 June 2019, a delegate of the Respondent refused the visa application by reason of failure to satisfy PIC 4020, cl.4020(1) or seek a waiver of the criterion such that cl.187.213 of the Regulations was not met (delegate's decision). According to the decision record, the critical finding was that the primary Applicant had provided, or caused to be provided, a bogus document or false or misleading information in relation to the visa application in that the nominating business was not genuine, did not lodge the application and had no intention to employ the primary Applicant in the position. Notice of the delegate's decision was sent to the "palacehotelmackay@....com" email address.
5. On 13 September 2019, the Applicants filed the originating application in this Court accompanied by a solicitor's affidavit which attached a copy of the delegate's decision record. By that application, the Applicants sought a declaration that no valid visa application was made by the Applicants to the Respondent for a regional employer nomination (subclass 187) visa on 29 January 2018 and an order that the delegate's decision be quashed. The application identified that an extension of the time for making such application was required, in support of which the Applicants said they did not receive a copy of the delegate's decision until 4 September 2019 (after the statutory timeframe for lodgement had lapsed), they have a strong case for judicial review and there is no prejudice to the Respondent. The single ground of the substantive application is expressed in the following terms:

The purported application for a subclass 187 visa made by the applicants to the respondent on 29 January 2018 was vitiated by fraudulent conduct of a third party.

Particulars

(a) The applicants relied on the services of a person known as Leon Albert Chan (Chan), who, to the knowledge of the first applicant (who was the primary visa applicant), lodged the application documents for the subclass 187 visa with the respondent.

(b) The first applicant now knows that Chan was not a registered migration agent.

(c) Among the application documents lodged by Chan with the respondent was a purported approval of the first applicant's nomination for the position of "Café or Restaurant Manager" by the Trustee for Palace Holdings Unit Trust, trading as QBar, in Mackay, Queensland.

(d) In fact, and unknown to the first applicant, the purported approval of the first applicant's nomination was a document fabricated by Chan, and no valid approval of the first applicant's nomination had been lodged with the respondent.

(e) The applicant's application was refused by the respondent on the grounds that the first applicant had provided false and misleading information to the respondent, thereby engaging Public Interest Criterion 4020 in Schedule 4 to the Migration Regulations 1994.

(f) The applicants were neither complicit in the fraud of Chan, nor were they "indifferent" to that fraud. Accordingly, the applicants were the innocent victims of third party fraud.

1. Various programming orders were made.
2. The Respondent filed a court book.
3. The Applicants did not file a formal application for transfer of the proceedings to the Federal Court of Australia as directed but both parties filed written submissions addressing the Applicants' request for transfer of the proceedings.
4. On 19 September 2025, the Applicants' solicitor filed an affidavit.
5. Both parties also filed written submissions in respect of the question of whether further time be allowed for the substantive application to be made to the Court.
6. On 22 December 2025, the primary Applicant filed another affidavit. By that affidavit, the primary Applicant deposed that he had received migration assistance from a person known to him as "Leon Albert Chan" and did not at the time realise that person was not a registered migration agent. Further, that the primary Applicant did not know that the Department had sent him an invitation to comment on 16 April 2019, and "Leon" did not inform him of the Department's email or of the delegate's decision. According to the affidavit evidence, the primary Applicant contacted "Leon" in around August 2019 to apply for a bridging visa to enable overseas travel and received no response which prompted him in September 2019 to contact another lawyer to find out his visa status. The primary Applicant also deposed that the "palacehotelmackay@....com" email address was not his own, he did not have access to it, and from recollection was the email address that "Leon" had used to forward earlier correspondence. The primary Applicant did not annex any supporting documents to that affidavit.
7. The parties requested that both interlocutory applications be determined on the papers, on the basis of the materials before the Court.

1. It is convenient to commence with the lateness of the substantive application, without an order in respect of which means that there is not strictly a valid application to consider for transfer.
2. An application for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a migration decision must be made to this Court within 35 days of the date of the migration decision: s.477(1).
3. It is not controversial that the present application was not made within 35 days of the delegate's decision. The delegate's decision was made on 15 June 2019 and the application was therefore due to be made by 20 July 2019. The application was not filed until 4 September 2019. Accordingly, the application was made some 55 days after the expiry of the statutory timeframe.
4. Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an application must be made as the Court considers appropriate if:

(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.

1. The statute does not specify any particular criteria which must be satisfied to establish that it is in "the interests of the administration of justice" to allow more time in which an application of this kind may be made.
2. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) (Katoa) at [12], the majority explained the relevant considerations for the Court when applying the provision:

Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

See also: Katoa at [35], [39] and [62]; SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 (Foster J) [46]-[48].

1. Although it is often appropriate to assess merits at a "reasonably impressionistic level" or at a "threshold level" in terms of whether the proposed ground(s) "enjoy[s] reasonable prospects of success", the High Court in Katoa held that it is within the Court's jurisdiction to have regard to the merits of a ground of review as it considers appropriate in the circumstances of the case: [17]-[19]. For example, at [18]:

... if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. Duration and explanation for the delay

1. In this case, and in the context of the short timeframe set by the Parliament, the delay was a relatively considerable period of 55 days.
2. Typically, the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration & Border Protection [2014] FCA 533 (Wigney J) at [38] (Tran). However, absence of a satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of a long delay: Tran at [38].
3. The Applicants submitted that the reason for the delay is, essentially, a case of migration agent fraud on account of which they did not receive a copy of the delegate's decision until September 2019, when the primary Applicant contacted a new representative for assistance.
4. An allegation of this kind need be supported by clear and cogent evidence. A party who asserts as much bears a "heavy burden" (See SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 (Allsop CJ, Robertson and Mortimer JJ)), for they must prove that the relevant third party's conduct "is not only a fraud on the visa applicant but must also stultify one or more aspects of the relevant statutory decision-making processes" (See Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554 (Kenny, Griffiths and Mortimer JJ): Chen v Minister for Immigration and Citizenship [2025] FCA 1285 (Derrington J).
5. The primary Applicant's brief affidavit evidence falls short of the standard of proof for such assertion. The primary visa application does not establish that a migration agent or any other person was nominated or assisted in the preparation of that document. There are no contemporaneous or supporting documents which evidence the engagement of a migration agent or any person to assist with the preparation of the original application, or of the claimed communication from the "palacehotelmackay@....com" email address or of attempts to contact "Leon".
6. Notwithstanding the inadequacy of the evidence, in acknowledgement that this is an interlocutory application and the evidence is as yet untested, I consider this factor to weigh neutrally toward the exercise of the discretion in the present case.

1. The Respondent was understood to properly accept that, other than cost, there is no particular prejudice to them save for public interest in the finality of administrative decision making. This is a relevant factor but not of itself determinative: BYF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2023 (Beach J) at [18].
2. There is a public interest in ensuring that decisions of the executive are made lawfully. Relevant to this will be the merits of the substantive grounds of review, which are considered further below.
3. And, as has been recognised in the established authorities, there is also a public interest in the finality of administrative decisions which is a strong consideration in the present case: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 (McHugh J) at [15] - [17].

1. While the discretion to extend the time afforded to the Court pursuant to s.477(2) is broad, if it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.
2. The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the ground(s) available to the applicant are reasonably arguable.
3. The Respondent maintained that the substantive application lacked merit because the Court has no jurisdiction to determine it - in circumstances where the delegate's decision was reviewable under Part 5 of the Act and therefore a "primary decision" as defined by s.476(4) of the Act.
4. For their part, the Applicants contended the jurisdiction of this Court to determine the substantive application is at least arguable pointing to limited authority in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) for the proposition that this Court has jurisdiction to at least determine whether the present application falls within its jurisdiction. Nonetheless, and notwithstanding their election to file here, the Applicants conceded this Court's jurisdiction to be uncertain and indeed argued that the uncertainty of this Court's jurisdiction warrants the grant of their separate application for transfer of the proceedings to the Federal Court of Australia.
5. As the Respondent strongly urged and the Applicants conceded, there is considerable doubt as to this Court's jurisdiction to determine the substantive application. In those circumstances, and applying the principles in Katoa, it is not proper to permit the application to proceed. The merit of the substantive application weighs heavily against the grant of an extension of time.

1. Weighing all of the relevant considerations, I am not able to conclude that it is in the interests of the administration of justice and am not minded to exercise the discretion to allow further time for the application to be made.
2. The application for an extension of the time for making the application filed 13 September 2019 must therefore be refused.
3. I will order that the Applicants pay the Respondent's costs fixed in the amount of $ 4,553.02 which I consider to be reasonable and appropriate having regard to the scale at Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 Rules).

1. Although strictly unnecessary, for completeness, were the application made within time or further time allowed I would nonetheless refuse the transfer request for the following reasons.
2. Section 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides for a discretionary transfer of proceedings pending in this Court as follows:

Discretionary transfer of proceedings

(1) If:

(a) a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2); and

(b) the proceeding is not a family law or child support proceeding;

the Court may, by order, transfer the proceeding from the Court to the Federal Court.

(2) The Federal Circuit and Family Court of Australia (Division 2) may transfer a proceeding:

(a) on the application of a party to the proceeding; or

(b) on its own initiative.

(3) In deciding whether to transfer a proceeding to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) must have regard to:

(a) any Rules of Court made for the purposes of subsection 154(2); and

(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and

(c) whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding; and

(d) the interests of the administration of justice.

(4) If an order is made under subsection (1), the order takes effect on the day that the order is confirmed by the Federal Court under section 32AD of the Federal Court of Australia Act 1976.

(5) The Federal Circuit and Family Court of Australia (Division 2) may make such orders as it considers necessary pending the order transferring the proceeding being confirmed by the Federal Court.

(6) An appeal does not lie from a decision of the Federal Circuit and Family Court of Australia (Division 2) in relation to the transfer of a proceeding under this section.

(7) This section does not apply to proceedings of a kind specified in the regulations.

154 Rules of Court

(1) The Rules of Court may make provision in relation to transfers of proceedings to the Federal Court under subsection 153(1), including in relation to the scale of costs that applies to any order made in respect of proceedings that are transferred.

(2) In particular, the Rules of Court may set out factors that are to be taken into account by the Federal Circuit and Family Court of Australia (Division 2) in deciding whether to transfer a proceeding to the Federal Court under subsection 153(1).

(3) Before Rules of Court are made for the purposes of this section, the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) must consult the Chief Justice of the Federal Court.

1. The relevant rule is r.20.01 of the 2025 Rules which provides as follows:

20.01 Transfer to Federal Court

(1) Unless the Court otherwise orders, an application under paragraph 153(2)(a) of the Act to transfer a proceeding from the Court to the Federal Court must:

(a) be made on or before the first court date for the proceeding; and

(b) be included in an application or a response in accordance with the approved form; and

(c) be supported by an affidavit.

Note: Subsection 153(1) of the Act provides that the Court may, by order, transfer a proceeding that is pending in the Court and is not a family law or child support proceeding to the Federal Court. Subsection 153(2) of the Act provides that the Court may transfer the proceeding on the application of a party to the proceeding or on its own initiative.

(2) In addition to the factors to which the Court must have regard under subsection 153(3) of the Act in deciding whether to transfer a proceeding to the Federal Court, the Court must take the following factors into account:

(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;

(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred;

(c) whether the proceeding will be heard earlier in the Court;

(d) the availability of particular procedures appropriate for the class of proceeding;

(e) the wishes of the parties.

(3) Before the Court makes an order under subsection 153(1) of the Act transferring a proceeding from the Court to the Federal Court:

(a) the Court must consult the Chief Judge of the Court in relation to the proposed transfer; and

(b) the Chief Judge of the Court must consult the Chief Justice of the Federal Court, or a delegate of the Chief Justice of the Federal Court, in relation to the proposed transfer.

(4) A failure to comply with this rule in relation to a proposed transfer of a proceeding under subsection 153(1) of the Act does not affect the validity of an order made under that subsection transferring the proceeding.

1. There is no formal transfer application before the Court notwithstanding the direction of the Court to do so. However it is understood that, by their submissions, the Applicants sought the matter be transferred on the basis that it were in the interests of the administration of justice to do so. In support, the Applicants asked the Court to consider the time and cost incurred by the Applicants, the potential cost implications of a non-transfer decision, the uncertainty of an outcome in the Federal Court due to the 5 year delay in filing if a fresh application were launched and that the matter is likely to be heard and determined at less cost and more convenience if a transfer were granted.
2. For their part, the Respondent contended that the Applicants elected this jurisdiction and that any delay flowing from that election is of the Applicants' own making. The Respondent otherwise contended that the interests of the administration of justice weigh against a transfer.
3. The parties did not draw the Court's attention to any proceedings in respect of an associated matter that are pending in the Federal Court nor was there reason to suggest, as the parties acknowledged, that the resources of this Court would be insufficient to hear and determine the proceeding.
4. The transfer application was not made on or before the first Court date (and, as above, not formally made at all). Consistent with the overarching purpose at r.1.05, compliance with r.20.01(1) might be waived in circumstances such as these where the application was foreshadowed at the first Court date, the proceedings are at an early stage and the parties have understood the foreshadowed application as pressed and had the opportunity to address the Court in that respect.
5. In weighing whether to exercise the discretion to transfer the proceedings to the Federal Court, I have considered the factors at s.153(3)(a) to (d) of the FCFCOA Act and the criterion at rule 20.01(2) of the 2025 Rules.
6. In keeping with those factors, I do not consider the proceedings likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue.
7. Other than the avoidance of a new filing fee, if transferred, I am not persuaded that the matter is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred.
8. Further, there is no basis to find that the proceeding will be heard earlier in the Court or that there are any particular procedures available that would be appropriate for the class of the proceedings.
9. Where the Respondent opposes the present application, the wishes of the parties do not weigh in favour of the exercise of the discretion in the present case.
10. Uncontroversial evidence before the Court established that the Applicants were on notice that the Court's jurisdiction was in issue since 27 February 2020. That the (represented) Applicants have elected during that time not to refile fresh proceedings in the Federal Court and now, almost 6 years later, took a different view is a decision of the Applicants' own choosing. In my view, the interests of the administration of justice do not favour a transfer order merely so that the Applicants can avoid the consequences of their election. To the contrary, the Applicants have required the unnecessary expenditure of public resources in pursuit of this application.
11. On all of the materials before the Court, and weighing the relevant considerations, I would not be persuaded to exercise the discretion in the present case. Were the application able to proceed, the transfer application would in any event be dismissed.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.