Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 880

1. The application for judicial review filed in the then FCCA by the applicants on 4 April 2019 contained five "grounds of review", as follows (without alteration) (CB 92):
   1. The 186 Nomination was refused by the DIBP as subregulation 5.19 (4) was not met by the business Zoom Mechanics Pty Ltd.
   2. There was an employment contract signed between myself Taranjeet Singh and Zoom Mechanics Pty Ltd for annual salary of AUD 59130 as a motor mechanic which was for a period of 24 months and ongoing.
   3. The terms and conditions of the employment of the position of the motor mechanic were no less favourable than what were given to an Australian permanent resident or a citizen employed by the business Zoom Mechanics Pty Ltd as a motor mechanic working at the same location and same work with similar academic qualifications and work experience.
   4. I had already worked with the same employer as a motor mechanic and my 457 visa was approved and there was an employment contract in place at the time of the application of 186 nomination was lodged by the business with the DIBP.
   5. The nomination application was lodged on 8 November 2016 and the decision to refuse the application was affirmed on 27 April 2017 by the DIBP without asking any documentation. The normal decision time of an 186 Nomination application was more than 12 months but the business was treated unfairly as the decision was made within 6 months without any communication and the DIBP overlooked Natural Justice.
2. The application was accompanied by an affidavit (affirmed by the first applicant) in support (CB 94-96). The affidavit annexed a copy of the Tribunal's decision (CB 97-101) and largely repeated information contained in the grounds of review (outlined above). Relevantly, the first applicant's affidavit stated as follows (CB 95):
   1. There was an signed employment contract in place at the time of nomination refusal by the DIBP and the conditions of employment were not less favourable than what were provided to and Aus Citizen.
   2. There was no communication after the lodging the 186 Nomination application and the decision was taken before the normal processing time of a 186 Nomination application was over and process of Natural Justice exists in my case and the DIBP and the AAT have made a judicial error of not satisfying subsection 5.19(4).
3. On 30 June 2021, procedural orders were made by Registrar van der Westhuizen of the then FCCA giving the applicants an opportunity to file an amended application, a supplementary court book and written submissions. Unfortunately, no additional materials were provided by or on behalf of the applicants.
4. The materials before this Court include the application for judicial review and supporting affidavit (affirmed by the first applicant on 4 April 2019 and taken as read an in evidence at the hearing of this matter) filed by the applicants on 4 April 2019, a CB numbering 117 pages (marked as Exhibit 1 at the hearing) and written submissions filed on behalf of the Minister on 1 April 2025.
5. The first applicant appeared before this Court on 15 April 2025 without legal representation. He appeared by video link and, whilst his wife and child were visible on screen with him (in the view of the Court), the first applicant confirmed to the Court that he would speak on behalf of his family and did so. Mr Jared Mintz from Clayton Utz (solicitors for the Minister) also appeared by video link at the hearing.
6. The Court confirmed with the first applicant that he had received copies of the CB and the Minister's written submissions.
7. Noting that the first applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal "did wrong". This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
8. To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at [207]- [208];

(e) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 ("SZRUI") at [2]; and

(f) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].

1. It was also explained that this Court cannot review the merits of the Tribunal's decisions or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
2. Against this background, the first applicant told the Court that, when his visa was refused, the sponsoring employer told him to stay with the company but it was "blacklisted" because it had sponsored more people than it should have. He explained that the sponsor had promised him sponsorship and promised to continue to pay him but did not do so. He further explained that he had been "let down" and "left in the middle" without any support. The first applicant also told the Court that he had been in Australia for 17 years with his family and, at his age, he is not able to lodge any other visa applications. He stressed that the third applicant (his son) was in year six of school and he cannot see any future for himself now. The first applicant also told the Court that he had been "exploited" by his sponsoring employer and, while he had worked for another employer for a year, he lost that opportunity when the COVID pandemic hit.

1. Unfortunately, the applicants' grounds of review were not particularised, no written submissions were filed by or on behalf of the applicants and the first applicant's oral submissions before this Court did not address the issue of jurisdictional error. This is not a criticism. The applicants in this case were not legally represented and the Court recognises that legal proceedings can be intimidating and stressful.
2. In the circumstances, the Court will interpret the applicants' concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) and will itself review the Tribunal's decision for any possible jurisdictional error.

1. As outlined above, grounds one, two and four relevantly provided as follows:
   1. The 186 Nomination was refused by the DIBP as subregulation 5.19 (4) was not met by the business Zoom Mechanics Pty Ltd.
   2. There was an employment contract signed between myself Taranjeet Singh and Zoom Mechanics Pty Ltd for annual salary of AUD 59130 as a motor mechanic which was for a period of 24 months and ongoing.

...

1. I had already worked with the same employer as a motor mechanic and my 457 visa was approved and there was an employment contract in place at the time of the application of 186 nomination was lodged by the business with the DIBP.

1. As can be seen above, grounds one, two and four simply outlined background and factual information in relation to the first applicant's employment history and his visa application. The grounds do not point to any issue of jurisdictional error of the sort that this Court can address.
2. No error arises in this regard.

1. Ground three stated:
   1. The terms and conditions of the employment of the position of the motor mechanic were no less favourable than what were given to an Australian permanent resident or a citizen employed by the business Zoom Mechanics Pty Ltd as a motor mechanic working at the same location and same work with similar academic qualifications and work experience.
2. By Ground three, the Court understands the applicants to have referenced the requirements set out in cl 186.242 in Schedule 2 of the Regulations. At the time of the Tribunal's decision, that clause relevantly provided as follows (emphasis added):

(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 Labour Agreement stream; and

(b) identified in the application for the grant of the visa.

(3) The Minister has approved the nomination.

(4) The nomination has not subsequently been withdrawn.

(4A) Either:

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

(b) it is reasonable to disregard any adverse information known to Immigration about the employer who made the nomination or a person associated with the employer.

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

(6) The terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(a) are provided; or

(b) would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the workplace to which the application relates at the same location.

1. As can be seen from the extract of the legislation above, cl 186.242(6) in Schedule 2 of the Regulations required that the terms and conditions of an applicant's employment be "no less favourable" than those provided to an Australian citizen or permanent resident performing the same work in the same workplace.
2. The Court notes, however, that cl 186.242 in Schedule 2 of the Regulations related only to a Subclass 186 visa applied for in the Labour Agreement stream: cl 186.242(1)(a)(ii) in Schedule 2 of the Regulations.
3. As outlined above, the first applicant here applied for a Subclass 186 visa in the Temporary Residence Transition stream. In those circumstances, the first applicant was not required to meet cl 186.242(6) in Schedule 2 of the Regulations in order to be granted the visa and the Tribunal made no findings in this regard. Nor was it required to do so.
4. No jurisdictional error arises in relation to ground three.

1. Ground five provided as follows:
   1. The nomination application was lodged on 8 November 2016 and the decision to refuse the application was affirmed on 27 April 2017 by the DIBP without asking any documentation. The normal decision time of an 186 Nomination application was more than 12 months but the business was treated unfairly as the decision was made within 6 months without any communication and the DIBP overlooked Natural Justice.
2. To the extent that ground five stated that the "business was treated unfairly" because a decision was made by the Department too quickly, the Court notes that it does not have jurisdiction to review the delegate's decision: ss 476(2) and (4) of the Act. That decision is a primary decision (within the meaning of s 476(2)(a) of the Act). As such, it is not subject to judicial review by this Court: ss 476(2) and (4) of the Act.
3. The Court also does not have any application before it in relation to the refusal of the nomination application and there is no evidence before the Court to suggest that the sponsor made any such judicial review application challenging the nomination decision. As correctly submitted by the Minister (at [12] in written submissions filed in this Court on 1 April 2025), any suggestion that the applicants are seeking to mount a collateral challenge to the Tribunal's decision in relation to the nomination decision should not be permitted.
4. In this regard, the Court is guided by comments made by the Full Court of the Federal Court in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 ("Singh 2023") (citing Jacobs v OneSteel Manufacturing Pty Ltd [2006] SASC 32 and Ousley v The Queen [1997] HCA 49), as follows:
   1. Ousley was considered by Besanko J in Jacobs v OneSteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568. His Honour was considering the question of whether the South Australian Workers Compensation Tribunal had jurisdiction to consider a collateral challenge to the validity of some of its own rules and if valid, whether those rules were inconsistent with terms of regulations made pursuant to the relevant legislation.

I do not think there is any doubt that in some cases there are good reasons to allow a collateral challenge and in other cases there are good reasons to deny it. On occasions there may be cases in which a statutory provision will provide a clear answer to the question whether a collateral challenge is permitted in a particular case. Other possible factors which might be relevant in deciding that question have been discussed in the authorities and in the academic literature. I refer to two articles for a helpful discussion of the relevant factors: M Aronson, "Criteria for Restricting Collateral Challenge" (1998) 9 Public Law Review 237 and Professor Enid Campbell, "Collateral Challenge of the Validity of Governmental Action" [1998] MonashULawRw 12; (1998) 24 Monash University Law Review 272. The factors identified include the following:

1. Are the grounds of challenge likely to involve the adducing of substantial evidence?

2. If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?

3. In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?

4. Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?

5. Is the issue raised by the collateral challenge clearly answered by authority?

6. Are there other cases pending which raise the same issue?

7. (Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted?

8. When the factors set out by Besanko J in Jacobs, which are not exhaustive, are considered:

(a) All proper parties were not heard on the appeal (Factor 2). That is significant because in the event the appeal was allowed, there is no evidence that Harsinco still has a desire or capability to employ Mr Singh; and

(b) Sections 479 and 486C and the consequent lack of standing on the part of the appellants, is such that those statutory provisions provide a clear answer to the issue as to whether a collateral challenge should be allowed in this matter. Those sections prohibit a collateral challenge of the type sought to be advanced (Factors 3 and 4).

1. The findings made above (in Singh 2023) apply equally to this case. Relevantly:

(a) all of the parties were not heard in the judicial review application (as required by Factor 2). That is also significant in this case because the first applicant expressed concerns with the conduct of the sponsoring employer in this matter and claimed to have been exploited by the sponsor. It is also significant because there is no evidence before the Court to suggest that the sponsor still has any desire or capability to employ the first applicant; and

(b) as was the case in Singh 2023, ss 479 and 486C of the Act and the consequent lack of standing on the part of the applicants in this case provide a clear answer as to whether a collateral challenge should be allowed in this matter. Those sections of the Act prohibit a challenge to the nomination refusal decision by the applicants in this case (Factors 3 and 4).

1. On that basis, the Court does not consider that the applicants should be permitted to raise a collateral challenge to the nomination decision.
2. Insofar as the applicants suggested that the Tribunal acted unfairly by not allowing them to appear at hearing before it or that they were unable to properly present their case, the Court disagrees for the reasons that follow.
3. As explained by this Court in Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 390 (and other similar matters), the Tribunal was required (by s 360(1) of the Act as was in force at the time of the Tribunal's decision) to invite an applicant to appear before it to give evidence and present arguments. However, there were some exceptions to this requirement, which were set out in ss 360(2) and (3) of the Act, as follows:

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 359C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

1. Relevant to this matter was s 360(2)(c) of the Act.
2. In this regard, s 359C(1) of the Act is of note. That section relevantly provided as follows:

(a) is invited in writing under section 359 to give information; and

(b) does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the information.

1. As outlined above, on 20 February 2019 the Tribunal invited the applicants (pursuant to s 359A of the Act) to comment on or respond to information in relation to their review application (CB 76-78).
2. The Tribunal's invitation letter relevantly provided as follows (CB 77-78):

In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

Please note, however, that we have not made up our mind about the information.

The particulars of the information are:

• The application for approval of the nominated position made by Zoom Mechanics Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. 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.

Your comments or response should be received by 6 March 2019. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

If you cannot provide your written comments or response by 6 March 2019, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us before 6 March 2019 and you must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

1. Critically for the applicants in this matter, the Tribunal's invitation letter required that a response be provided to the Tribunal by no later than 6 March 2019. Further, any request for an extension of time within which to respond to the invitation letter also had to be received by 6 March 2019.
2. The applicants did not provide any response to that invitation. Nor did they seek any extension of time within which to do so (CB 85).
3. The effect of the applicants' failure to respond to the Tribunal's invitation letter or to request an extension by 6 March 2019 was that ss 359C, 360(3) and 363A of the Act were enlivened. This meant that the applicants lost any right or entitlement to appear at a hearing before the Tribunal. That is, the Tribunal had no discretion (nor any power) to permit the applicants to attend a hearing. The Tribunal was, in effect, required to determine the application on the papers or materials before it.
4. No jurisdictional error arises in relation to the Tribunal not inviting the applicants to attend a hearing before it and proceeding to determine the matter on the materials before it.
5. The Court will also consider whether the Tribunal has otherwise afforded the applicants procedural fairness.
6. As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243 (and other similar matters), Division 5 of Part 5 of the Act (as was in force at the time of the Tribunal's decision) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal was obliged to comply with those requirements: s 357A of the Act.
7. The Court has considered whether the Tribunal did so in this matter and notes that:

(a) the Tribunal exercised its power under s 359A of the Act to invite the applicants to comment on or respond to information (CB 76-78). The applicants did not respond to that invitation (CB 85);

(b) the dispositive issue before the Tribunal (being whether the first applicant was the subject of an approved nomination as required by cl 186.223 in Schedule 2 of the Regulations) was the same as the issue before the delegate and which led to the refusal of the applicants' visas. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and

(c) there is no evidence before this Court to suggest that the Tribunal was anything but impartial and objective: SZRUI.

1. The Court is satisfied that the Tribunal afforded the applicants procedural fairness in this matter.
2. No jurisdictional error arises in relation to ground five.

1. As discussed by this Court in Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 124 ("Thakur") (and other similar matters involving either Subclass 187 or Subclass 186 visas), visas of this sort are, in effect, "tied" to the sponsor and the approval of that sponsor's related nomination application. It is a pre-requisite that the sponsor's nomination application be successful in order for an applicant to be successful with his or her visa application. If the nomination application is not successful, an applicant's visa application is "doomed to fail".
2. In relation to this matter, even if the Court found that there was jurisdictional error on the part of the Tribunal, it would be futile to remit the matter: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 ("Singh 2017") at [88]-[90]. This is so because the Tribunal would, again, find that the first applicant does not meet cl 186.223 in Schedule 2 of the Regulations. Importantly, he is not the subject of a valid nomination. Further, there is no evidence before this Court to suggest that the sponsor has sought to challenge the nomination decision in this Court (after the Tribunal affirmed the decision refusing the nomination application made by the sponsor).
3. As per this Court's reasoning in Thakur, the decision to refuse the nomination in relation to the first applicant thus remains a valid and effective decision which, on remittal, the first applicant cannot cure. He cannot, for example, find a new sponsor or be nominated for a different position. The application is a "once off" process tied to the sponsor's nomination application which, here, has failed: Singh 2017 at [90]. This means that the applicants will, on any view, also fail if the matter is remitted to the Tribunal.
4. Accordingly, any decision by this Court to remit the matter to the Tribunal would be futile.

1. The circumstances of this matter are most unfortunate.
2. The first applicant in this matter told the Court that he had been "exploited" by his sponsoring employer. He also told the Court that he had tried to find another sponsoring company and worked for a new employer for a year before the COVID pandemic ultimately ended that opportunity. The first applicant and his family have otherwise been in Australia for 17 years and have made a life for themselves in Australia and now face an uncertain future. The Court sympathises with the first applicant and the situation he and his family now find themselves facing.
3. Unfortunately, for the reasons set out above, the Court is not able to assist the applicants in relation to their judicial review application.
4. The Court does, however, consider that the applicants' circumstances to be "compelling".
5. The Court draws the applicants' attention to the Minister's discretionary powers pursuant to s 351(1) of the Act. Where, as is the case here, the Tribunal has affirmed a decision refusing the applicants the visas, and that decision has been upheld on review, the Minister has a statutory discretion to substitute a more favourable decision.

1. The application for judicial review and supporting affidavit (filed by the applicants in the then FCCA on 4 April 2019) have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise satisfied that no error arises and remittal of the matter would, in any event, be futile.
2. The application is, accordingly, dismissed.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.