Rao v Minister for Immigration and Citizenship [2025] FedCFamC2G 1793

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical 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 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The reasons for decision below were delivered orally at the conclusion of the hearing on 20 October 2025. The written version has been prepared with the assistance of the courtroom recording.
2. The first applicant in these proceedings is Ms Rikitaben Rao. Her daughter Dhani is the second applicant. Both applicants are citizens of India. Ms Rao applied for a Regional Employer Nomination (Class RN) (Subclass 187) visa in what is known as the Direct Entry Stream. The application was lodged on 19 July 2019. Dhani applied for the same visa on the basis she is a family member of Ms Rao. The outcome of Dhani's visa application depends on the outcome of her mother's visa application. For that reason, I will focus on Ms Rao's application in the reasons that follow.
3. It is helpful to begin by referring to criteria which govern visa applications of this kind. That will help us to understand what happened in this case.
4. Applicants for this subclass of visa must satisfy the primary criteria in cl 187.23 of sch 2 to the Migration Regulations 1994 (Cth). Clause 187.233 requires that the visa application relate to a nominated position. The nomination must be made by the person who will be the employer. The nomination must be approved by the minister and the nomination must not have been withdrawn.
5. There is no dispute that the applicant applied for a visa in this subclass in the Direct Entry stream. There is also no dispute she applied for the visa in connection with a software development position that was nominated by her intended employer, AZ Recruitment Pty Ltd. But there is also no dispute that the employer's nomination was refused by the minister on or about 2 October 2019. (The court book includes a decision made by the Administrative Appeals Tribunal confirming it did not have jurisdiction to entertain an appeal of the minister's decision with respect to the nomination that had been filed by AZ Recruitment. The Tribunal decided there was no one with standing to bring the appeal because the employer company had been deregistered. That means the decision stood.) The delegate concluded the absence of a valid nomination meant Ms Rao could not satisfy cl 187.233 of sch 2 to the Regulations. The visa (and the related visa application from Dhani) was refused by the delegate as a consequence on 7 November 2019.
6. Ms Rao and her daughter sought review of that decision in the Tribunal. On 9 February 2022, the Tribunal wrote a letter which purported to draw Ms Rao's attention to what would turn out to be the decisive factor in her application for review - namely, the absence of an approved nomination. The letter is reproduced at pp 81ff of the court book. It was presumably intended to satisfy the procedural fairness requirement in s 359A of the Migration Act 1958 (Cth). Relevantly, it said:

The particulars of the information are:

• The application for approval of the nominated position made by AZ RECRUITMENT PTY LTD was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision and it follows that the Tribunal does not have jurisdiction in this matter. This means that the nominator's application for the nominated position has not been approved.

This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

You are invited to give comments on or respond to the above information in writing.

1. This issue had already been explained by the delegate in their reasons for decision, but the Tribunal's letter was not a model of clarity. That is potentially an issue because s 359A of the Act requires that the letter include 'clear particulars' of the issue. The minister says the letter communicates the particulars with sufficient clarity. With some hesitation, I am inclined to agree. There is an interesting question as to whether the clarity of the particulars should be assessed only having regard to the language used in the letter, or whether it is possible to assume the applicant was already aware of the issue because it had been explained more clearly by the delegate in their reasons for decision. Section 359A is intended to put the applicant on notice of any issue so that the applicant is not surprised at the hearing and is able to offer a considered response. Given that evident purpose, I would have thought the applicant's existing state of knowledge (which includes and can be inferred from the delegate's reasons for decision) should be taken into account when assessing whether the particulars have been communicated with sufficient clarity. But I am satisfied the letter does the job required of it in any event.
2. The applicant did not respond to the s 359A letter and the Tribunal made its decision without conducting a hearing. That decision is reproduced in the court book at pp 85ff. The decision is very short. It refers to the s 359A letter. The Tribunal also mangles the question it is required to answer to make the decision. It says:

The issue in the present case is whether the applicant has an approved standard business sponsor for the position of Developer Programmer...

1. Clause 187.233 simply refers to an approved nomination. The Tribunal was adding a gloss to those words when it referred to an approved standard business sponsor. As it happens, I do not think the Tribunal misdirected itself in substance; it was just careless in its use of the language. There does not appear to be any doubt what the Tribunal was referring to, and that it accurately understood the substance of the criteria it was applying even as it misdescribed what was said in the relevant criteria.
2. I also note the Tribunal failed to articulate why it was that the second applicant failed to meet the criteria which applied to her.
3. Ms Rao has now sought judicial review of the Tribunal's decision. In her application, she asked for orders setting aside the Tribunal decision. She did not seek an order of mandamus, but that omission was corrected by consent at the start of the hearing.
4. There is a single ground of review in the application. It refers to procedural unfairness. In Ms Rao's affidavit, there was some little elaboration on her circumstances and those of her daughter and why she thought the decision was in error, but it was difficult to discern a jurisdictional error from what she said. I explained the concept of jurisdictional error at the outset of the hearing before me so that she might properly understand the Court's role.
5. Ms Robinson, who appeared for the minister, said the grounds of review as drafted did not disclose a jurisdictional error without more. When I asked the applicant to explain her criticisms in her own words, she was unable to point to anything specific that the Tribunal had done wrong.
6. Ms Robinson did address the three potential errors to which I have already alluded. She argued the s 359A letter did give sufficiently clear particulars of the issue, even if it was not a model of clarity. She pointed out the letter clearly says the nomination had not been approved, and a nomination was required. I accept the letter communicates the essence of the important information with sufficient clarity. If I had any doubt about whether that was clear from reading the text of the document - and I do not - I would say it was clear in the circumstances what was being communicated, those circumstances including the statement provided by the delegate.
7. I do not think anything turns on the failure to accurately quote the words of the relevant criteria because there does not appear to be any misdirection in substance.
8. It follows the decision with respect to Ms Rao cannot be impeached. While there are errors, they are not jurisdictional in nature. (I should add that if I were satisfied the problems with the s 359A notice were such that the applicant was found not to have been given clear particulars of the issue in question, the authorities make clear that error would be jurisdictional in nature.)
9. The Tribunal did not explicitly and separately address the position of Dhani, the daughter. That is potentially an error, and arguably a jurisdictional one, insofar as the decision relates to Dhani. But there can be no doubt that her application would have failed had the Tribunal gotten around to addressing it.
10. To the extent there was any error in the decision that was jurisdictional in nature, that raises the question of whether I should exercise the discretion to provide relief. In circumstances where the Tribunal is unable to achieve a different outcome, there is no point in sending it back. It is not as if Ms Rao can organise an alternative sponsor at this point: for the reasons explained by the Full Court in Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 at [88] and [90], the application for a visa relates to a particular position nominated by a particular employer. Moreover the daughter cannot succeed once her mother's application fails because cl 187.311 makes the daughter's visa contingent on the mother's visa.
11. It follows the application for judicial review must be refused.
12. That leaves the question of costs. I discussed this at the end of submissions before retiring to consider my decision. Ms Robinson says an award of costs should be made in favour of the minister in the fixed amount of $5,400. That award should be made against the first applicant, not the second, who is a minor. Ms Robinson said the minister was required to defend the proceedings and has briefed counsel. She says the amount of costs actually incurred substantially exceeds the amount that has been sought, and they are less than the amount indicated on the Court's scale. The applicant had nothing to say about question of costs.
13. I am satisfied an award of costs should be made against the first applicant but not the second. The minister was required to defend the proceedings; any shortfall will have to be met out of public monies. I accept the fixed amount of $5,400 is reasonable in the circumstances with reference to the Court's scale and the amount of work actually done.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge McCabe delivered on 20 October 2025.