Syed v Minister for Immigration, Citizenship and Multicultural Affairs

1. The first applicant (Applicant) is a citizen of India who applied for a Regional Sponsored Migration Scheme (subclass 187) visa in the Direct Entry stream on 16 February 2018. The second applicant is the Applicant's wife, and the third, fourth and fifth applicants are his minor children and all were included in Applicant's visa application as members of his family unit. Their application was refused by a delegate (Delegate) of the first respondent (Minister) on 6 August 2019 because the nomination lodged by the Applicant's proposed sponsor had not been approved by the Minister. The applicants then applied to the second respondent (Tribunal) for a review of that departmental decision. They were unsuccessful before the Tribunal and applied to this Court for judicial review of the Tribunal's decision.
2. On 23 July 2024 a registrar summarily dismissed the application on the basis that it lacked reasonable prospects of success. On 28 July 2024 the applicants applied for a review of the registrar's decision. It is that application that is presently before the Court. At the time the review was held, Rule 21.04(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) provided that a review of a registrar's decision was to proceed as a hearing de novo.
3. This is a judicial review proceeding and the Court cannot rehear the applicants' application for visas. Its task is to determine whether the Tribunal's decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Act); Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.
4. For the reasons which follow, the registrar's decision of 23 July 2024 will be confirmed.

1. The grounds of the application commencing this proceeding were pleaded as follows:
   1. Minister of Immigration, Citizenship and Multicultural Affairs and Administrative Appeals Tribunal have had made jurisdictional errors. After lodging my application for Regional Employer Nomination (subclass 187) on 16 February 2018, my Employer Zsigmond KELEVITZ going through some financial problems and so not able to provide required documents. I have requested for time extension to submit documents in a while but Immigration department neither give me a chance to prove it (nomination) nor fair with me for my visa application and neglected the sections of Migration Act 1958 regarding such matter.
   2. Administrative Appeals Tribunal also made same jurisdictional error by not considering current Migration Act 1958 about Genuine approach to provide nomination and visa documents rather they give more weight to immigration department officer's claim which was without a fair go for a chance to submit further evidence. Tribunal even did not look into the Natural Justice issues as it's arises from the current Migration Act 1958.
2. The first ground of the application, although it implicitly refers to the actions of the Delegate, appears to be a complaint that the Tribunal did not grant the applicants the adjournment of the Tribunal hearing that they sought on 14 April 2023. In its decision record the Tribunal explained its reasons for declining the request for an adjournment:
   1. In relation to the applicant's request that the Tribunal delay making a decision so that the applicant can consider his options to apply for a sub class 482 visa, the Tribunal is mindful that requests for deferrals must be considered carefully to determine whether they are reasonable or not: Minister for Immigration and Citizenship v Li [2013] HCA 18. The Tribunal carefully considered the applicant's request but declined to defer its decision in this matter to provide the applicant time to consider his options and apply for a subclass 482 visa. Furthermore, the Tribunal considers that the placement of an applicant's review on hold to provide them opportunity to consider their options and apply for another visa, does not contribute towards achieving the objectives of the functions of the Tribunal as per section 2A of the Administrative Appeals Tribunal Act. (reference omitted)

(2003) 211 CLR 476