Federal Court of Australia

Kumar v Minister for Immigration and Citizenship [2025] FCA 716

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent is amended to “Minister for Immigration and Citizenship”.

2.    The name of the Second Respondent is amended to “Administrative Review Tribunal”.

3.    The appeal is dismissed.

4.    The Appellants pay the costs of the First Respondent, fixed in the sum of $3,500.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HILL J:

1    The Appellants seek to appeal against a judgment of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA): Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 679 (J). The primary judge refused to grant an extension of time under s 477(2) of the Migration Act 1958 (Cth) to bring an application to review a decision of the former Administrative Appeals Tribunal, which had affirmed a decision not to grant the Appellants Employer Nomination (Permanent) (Class EN) (subclass 186) visas. The primary judge also determined that the substantive application for review should be dismissed.

2    For the following reasons, the appeal must be dismissed with costs.

    To the extent that the Appellants seek to appeal from the refusal to grant an extension of time, the appeal is incompetent: the Act expressly excludes appeals to this Court from a judgment of the FCFCOA refusing to grant an extension of time under s 477(2) (s 476A(3)(a)). It would be open to the Court to treat the notice of appeal as an application for judicial review of the decision of the primary judge; however, nothing in the Appellants’ arguments suggests any jurisdictional error in that decision. Nor is any jurisdictional error otherwise apparent; to the contrary, the primary judge applied settled principle to this matter in an entirely orthodox fashion.

    To the extent that the Appellants seek to appeal from the primary judge’s dismissal of the substantive application, there is no error in the reasons of the primary judge and any appeal (even putting aside competency issues) would have to be dismissed.

    And even if there had been jurisdictional error or appealable error in the decision of the primary judge, there would be no utility in making the orders sought by the Appellants. An essential precondition for obtaining the Employer Nomination visas was not satisfied at the time of the Tribunal’s decision and could not be satisfied now. There is no possibility in law that any different decision could be made on a remitter.

Background

3    Appellants: The Appellants are Indian nationals. The Second Appellant is married to the First Appellant (Mr Kumar), and the Third Appellant is their daughter.

4    Application for visa (Jun 2017): On 29 June 2017, Mr Kumar applied for an Employer Nomination visa as the primary applicant, for the position of hairdresser at Preet Brothers Pty Ltd (Preet Bros) (the nominating employer). His wife and daughter applied as his family members. Preet Bros applied on 26 June 2017 for approval of a nomination of a position for Mr Kumar (J [10]).

5    Preet Bros nomination refused (Aug 2018): On 20 August 2018, a delegate of the First Respondent (the Minister) refused the nomination lodged by Preet Bros in respect of Mr Kumar. It appears the difficulty was that the delegate was not satisfied that the terms and conditions of employment for Mr Kumar were no less favourable than those that would be offered to an Australian citizen or permanent resident performing equivalent work (J [12]).

6    Delegate refuses visa (Sep 2018): On 26 September 2018, a different delegate of the Minister refused the Appellants’ visa applications. The refusal of Preet Bros’s nomination meant that Mr Kumar did not meet an essential condition for the Employer Nomination visa (J [14]); namely, cl 186.223(2) in Sch 2 to the Migration Regulations 1994 (Cth). That in turn meant that his wife and daughter did not meet the secondary criteria for that visa.

7    AAT application (Oct 2018): On 15 October 2018, the Appellants applied to the Tribunal for merits review of the delegate’s decision. The Tribunal held a hearing on 29 August 2019.

8    AAT seeks comment (Oct, Nov 2019): On 17 October 2019, the Tribunal in different proceedings affirmed the decision to refuse the Preet Bros nomination in respect of Mr Kumar (J [19]). On 21 October 2019 and 7 November 2019, the Tribunal invited the Appellants to comment on this information (J [20]-[21]). The Tribunal purported to deliver its decision on 9 November 2019 (while the period for responding to the 7 November 2019 invitation was still open); however, the Tribunal told the Appellants’ representative on 11 November 2019 by telephone and email that the case remained open and that the Tribunal matter was still active.

9    AAT affirms decision (Nov 2019): On 22 November 2019, the Tribunal affirmed the delegate’s decision not to grant the Appellants Employer Nomination visas. The Appellants were notified of this decision on 2 December 2019 (J [25]). The relevant parts of the Tribunal’s decision are as follows:

    The Tribunal stated that the issue was whether there was an approved employer nomination (Tribunal reasons (AAT) [9]). The criteria for the Employer Nomination visa required (among other things) that the position to which the visa application relates be the subject of an employer nomination that has been approved by the Minister and not subsequently withdrawn (AAT [11]).

    Preet Bros had applied for approval of the position of hairdresser in respect of Mr Kumar. That application had been refused by a delegate, and that refusal had been affirmed by the Tribunal (AAT [12]-[13]). Because there was no approved nomination, Mr Kumar could not satisfy cl 186.223(2) in Sch 2 to the Regulations (AAT [13]).

    The Tribunal noted that, on 19 November 2019, Mr Kumar had provided an updated employment contract and recent payslips for the period commencing on 1 November 2019 to show that his salary had been adjusted so that his terms and conditions were now no less favourable than those that would be offered to an Australian citizen or permanent resident performing equivalent work (AAT [15]). However, the requirement to have an approved nomination for a position referred to is a particular job with a particular employer at a particular time. Mr Kumar’s visa application was specifically linked to the nomination by Preet Bros, and that nomination was not, and now could not be, approved (AAT [17]-[18]).

10    Application to court below (Jan 2020): On 2 January 2020, the Appellants lodged an application with the Federal Circuit Court (as it then was) seeking judicial review of the Tribunal’s decision. That application included an application for an extension of time (J [26]).

11    Primary judge dismisses application (Aug 2023): On 11 August 2023, the primary judge decided that the Appellants should not be granted an extension of time, because their application had no prospects of success (J [5]). The primary judge also determined that the substantive application for review should be dismissed (J [6]).

12    The key parts of the primary judge’s reasons for present purposes are as follows.

13    Preet Bros no longer exists: The Minister’s searches of the database of the Australian Securities and Investments Commission indicated that Preet Bros was de-registered on 2 October 2022. The primary judge therefore dismissed the separate judicial review proceedings challenging the Tribunal’s decision that affirmed the refusal of Preet Bros’s nomination of Mr Kumar (J [38]-[40]). This de-registration of Preet Bros had the necessary and unfortunate consequence for Mr Kumar that the substantive application to review the Tribunal’s decision to refuse his visa application must fail, and that any extension of time would be futile (J [41]).

14    Applicants require an extension of time: The primary judge found that the Appellants required an extension of time (J [31]-[32]). By s 477(1) of the Act, an application for judicial review must be made within 35 days of the date of the “migration decision” (the Tribunal’s decision).

    The Tribunal’s decision was made on 22 November 2019, but was not notified to the Appellants until 2 December 2019. The “date of the migration decision” for the purposes of s 477(1) of the Act is taken to be the day on which the written statement is made, not the date on which the decision is notified to the person (see s 477(3)(b), read with s 368(6)(a)).

    The period of 35 days from the date of the Tribunal’s written statement ended on 27 December 2019. The application for judicial review was lodged on 2 January 2020, 6 days outside the time prescribed by s 477.

15    Extension of time – legal principles: By s 477(2) of the Act, the FCFCOA may grant an extension of time if an application is made in writing, and the Court “is satisfied that it is necessary in the interests of the administration of justice to make the order” (J [55]).

    The primary judge held that there are a range of factors to which the Court has regard under s 477(2), including (a) the length of the delay; (b) any explanation for the delay; (c) prejudice to the Minister if the extension of time were granted; and (d) the merits of the substantive application (J [56]).

    The primary judge stated that often the Court would assess the merits of the underlying application at a reasonably impressionistic level, but there may be circumstances in which it is appropriate for the Court to engage in a more than impressionistic assessment (J [59]-[60], quoting Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [17]-[18] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [62] (Gordon, Edelman and Steward JJ)).

16    Extension of time – consideration: The primary judge found that the brief delay of six days in the circumstances (such as Mr Kumar’s language issues and unfamiliarity with the legal system, and loss of legal representatives) was a factor weighing in favour of an extension of time (J [66]). The primary judge found that there would be no prejudice to the Minister if an extension were granted, but that the absence of prejudice, in itself, did not warrant an extension of time (J [67]).

17    The primary judge held, however, that there was no merit in the substantive application. The Appellants’ grounds did not engage with the dispositive ground of the Tribunal’s decision. The primary judge held that, as Mr Kumar’s visa application was not supported by an approved employer position nomination, the Tribunal made the only decision which was open to it (J [72]-[73]). The primary judge referred in this context (as had the Tribunal) to the Full Court decision in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267 at [88]-[90] (Mortimer J, with Bromberg and Jagot JJ agreeing), which considered a similar provision (J [71]). The primary judge concluded (at J [74]):

Accordingly, whatever might be said about the other factors which are relevant to an extension of time application, here the merit of the substantive judicial review application is so lacking that it cannot be necessary in the interests of the administration of justice to make an order extending time. The application for an extension of time should be dismissed.

18    Futility: The primary judge stated that there was a further practical argument which weighed in favour of dismissing the application. Preet Bros was by then de-registered, and therefore could not prosecute the judicial review application challenging the decision to refuse the employer nomination in respect of Mr Kumar. Further, this de-registration of Preet Bros meant that the Tribunal could not grant the relief sought (because the employer associated with the visa application no longer existed) (J [76]-[77]).

19    Disposition: The primary judge stated that the circumstances in which the Appellants found themselves were most unfortunate. The Minister accepted that Mr Kumar had at all times been honest and candid and that the circumstances of the visa refusal were largely outside his control. Like the Tribunal, the primary judge found Mr Kumar to be a genuine and credible witness (J [78]-[79]). Nonetheless, the primary judge was satisfied that the Tribunal did not fall into jurisdictional error and that it made the only decision that was open to it. Granting an extension of time would be an exercise in futility, and for that reason the primary judge dismissed the application (J [80]).

20    Appeal to this Court (Aug 2023): On 31 August 2023, the Appellants filed a notice of appeal, seeking to appeal the decision of the primary judge. That document lists 15 “grounds of appeal”, followed by Particulars numbered I to XLII. Mr Kumar has also filed an affidavit dated 28 August 2023 (filed on 31 August), which sets out (in [5]) the following grounds of appeal (without alteration):

(a)    The learned judge in the Federal Circuit Court has erred in law and therefore fell into jurisdictional error by failing to identify the incorrect consideration of relevant evidence by AAT.

(b)    Federal Circuit Court erred in dismissing the appellants without considering the circumstances of the application in entirety by not assessing the review grounds submitted regarding Exceptional Reasons and circumstances of my visa application.

(c)    The delegate of the Minister concludes that there is no merit in the substantive application in absence of nomination, influences the judge that is inutile to extend time without considering my circumstance, losing my right as natural justice system in Australia.

    Failure to afford procedural fairness:

a)    There has been a failure to provide procedural fairness by not giving me an opportunity to be heard which had resulted in complete failure of natural justice.

b)    FCC could not provide additional extension of time, to submit information, which was warranted, due to problems associated lack of knowledge with self-representation in FCCA – at the hearing of the judicial review application on 31 July 2023, which was self-represented by me.

21    Objection to competency (Sep 2023): On 12 September 2023, the Minister filed a notice of objection to competency. The objection is that s 476A(3)(a) excludes appeals from the FCFCOA to this Court from a judgment refusing to grant an extension of time under s 477(2).

22    The Minister applied for the question of competency to be determined before the hearing of the application. The Court requested that the Minister’s written submissions address not only the question of competency, but also whether the Court can and should treat the application as an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) and, as part of those submissions, whether there was any reviewable error in the decision of the primary judge.

CONSIDERATION

A.    Request to adjourn hearing refused

23    A preliminary procedural matter is a request by Mr Kumar that the hearing be adjourned.

24    Request for adjournment (Jun 2025): On 2 June 2025, Mr Kumar stated in a telephone conversation with chambers staff that he wanted to ask for an adjournment of 1-2 months, because he wanted time to apply for a passport for his son. He was told that any request for an adjournment should be made in writing. On 9 June 2025, Mr Kumar emailed chambers (copying in the Minister’s lawyers) stating “We have explained our situation as discussed over the phone last week .so kindly plz give extension”. On 10 June 2025, chambers staff replied by email (copying in the Minister’s lawyers) stating that, if Mr Kumar wished to apply for an adjournment, he should set out in writing as soon as possible his reasons for seeking an adjournment, and provide any supporting material that he wished to rely on. After being advised on the Minister’s position, the Court would then decide whether to grant an adjournment. The email stated that, if an adjournment was not granted, the hearing on Friday 13 June 2025 would proceed.

25    In the morning of 12 June 2025 (the day before the scheduled hearing), Mr Kumar sent an email to Chambers (copying in the Minister’s lawyers) stating:

I email the court requesting an adjournment based on my personal circumstances and to add my younger child to add on this ongoing application.

1. I have attached the hospital document of my son’s birth.

2. I have attached his green book given from the hospital.

3. I need to apply for his birth certificate from the BDM victoria.

4. I need to apply for his passport and add him to my visa application.

5. I need to seek legal representation for my matter.

Because of ongoing procedural stress and financial commitments, I could not focus on my duties and was negligent at these processes. I have realised it and now I am on the verge of acquiring these documentations from the authorised bodies. I would be really grateful if the court can consider my request to adjourn this case.

26    Adjournment – general principles: The power of the Court to grant an adjournment is discretionary, to be exercised having regard to the objectives in s 37M(2) of the Federal Court of Australia Act 1976 (Cth): see Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42] (the Court). The overall question is whether it is in the interests of justice to grant the adjournment, having regard to matters such as whether the party applying for the adjournment has had a reasonable opportunity to prepare their case (and their explanation for seeking an adjournment); whether an adjournment would cause prejudice to the other party; and the effect of any adjournment on the administration of justice more generally.

27    No sufficient basis for an adjournment: On 12 June 2025, the parties were notified by email that the Appellants’ request for an adjournment was refused. The matters raised in Mr Kumar’s email, whether taken individually or together, did not provide a sufficient basis for granting an adjournment. The following explains that conclusion.

28    Adding son to visa application: The matters numbered 1 to 4 above (relating to Mr Kumar’s son) are not relevant in deciding whether to grant an adjournment. The immediate issue in this proceeding is the lawfulness of the primary judge’s decision, which in turn considered the lawfulness of the Tribunal’s decision. The lawfulness of the Tribunal’s decision is determined on the circumstances as they existed at the time of its decision: see, for example, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; (2022) 289 FCR 164 at [28], [38] (the Court); NZA v Minister for Immigration [2013] FCA 140; (2013) 140 ALD 555 at [111] (Kenny J); Tariq v Minister for Immigration and Border Protection [2018] FCA 1409 at [7] (Perram J). Accordingly, it could not affect the legal issues to be decided in this appeal whether or not the son is added to the visa application now. In any event, it appears that Mr Kumar’s son was born on 4 April 2024; that is, more than a year ago. There has been ample time for these steps to have been taken already.

29    Legal representation: Mr Kumar also wishes to obtain legal representation (see numbered point 5 in his email above), which is a relevant factor in considering the question of whether an adjournment should be granted. However, there is no “right” to legal representation in a civil proceeding such as this. Matters that will be relevant in determining the weight to be given to the wish to obtain legal representation include:

(a)    the amount of time the party has had to obtain legal representation;

(b)    the steps the party has taken to obtain such representation during that time;

(c)    the explanation for any delay in that respect;

(d)    the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and

(e)    the time required for the appellant to do so.

See for example WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2] (Jackson J); ASO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1141 at [7] (Goodman J).

30    These factors tend strongly against granting an adjournment here. The Appellants have had since at least 31 August 2023 (when the notice of appeal was filed) to seek a lawyer. There is no evidence of any steps taken to obtain a lawyer, nor evidence about how long would be required. There is no explanation for the delay, except perhaps a general reference to “ongoing procedural stress and financial commitments”. And Mr Kumar has not provided any material that would suggest any likelihood of the Appellants obtaining legal representation now.

31    Ongoing procedural stress and financial commitments: Mr Kumar’s email also refers to “ongoing procedural stress and financial commitments”. That very general statement does not advance the Appellants’ case for an adjournment. It is for the person applying for an adjournment to make a case for an adjournment: Tang v Minister for Immigration and Border Protection [2018] FCA 1274 at [46] (Kenny J).

32    Effect on administration of justice generally: Finally, an adjournment would not promote the administration of justice generally. The Court is entitled to be conscious of the “effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”: Luck at [43], quoting Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 at 629 (Brennan, Deane and McHugh JJ).

    As a consequence of the late application, the Court and the Minister have prepared for the appeal. It would be detrimental to the administration of justice, and a waste of the Court’s time and resources, to reschedule the appeal for another day: see FQV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 225 at [17]-[18] (Stewart J); see also Matson v Attorney-General (No 2) [2022] FCA 213 at [6] (Collier J); Dharma v Minister for Home Affairs [2019] FCA 431; (2019) 78 AAR 10 at [37] (Griffiths J).

    Any adjournment will necessarily result in an opportunity cost in terms of the public resources invested for judicial proceedings. That is because, if the hearing were adjourned, it would then fall for listing on a day to the exclusion of some other case, which might otherwise have been heard on that day: see MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 at [11] (Logan J); see also Dahdah v Platinum Distributors Australia Pty Ltd [2023] FCAFC 65 at [166] (the Court).

    This matter has been on foot in this Court for quite some time, having been commenced in August 2023. As explained below, the merit of the Appellants’ claims will not improve with delay: see particularly [51]-[58] below; cf Luck at [52].

B.    Is the appeal competent?

33    No appeal from a refusal to extend time: The first substantive issue is whether the appeal is competent. Plainly, s 476A(3)(a) of the Act excludes any appeal to this Court from a judgment by the FCFCOA to refuse to grant an extension of time under s 477(2) of the Act. The only possible issue is whether that is what the primary judge did in this case.

    As noted, the primary judge decided that the Appellants should not be granted an extension of time (J [5]), but also determined that the substantive application for review should be dismissed (J [6]).

    Order 1 of the FCFCOA orders is that the “application for judicial review filed on 2 January 2020 be dismissed”. There is perhaps some ambiguity whether this order dismisses the substantive application, or the application for an extension of time contained within that application.

34    Construing FCFCOA order 1: Where orders are ambiguous, a court may have regard to the reasons for judgment to which those orders are intended to give effect in resolving the ambiguity (and indeed those reasons are the primary point of reference): see, for example, HBSY Pty Ltd v Lewis (Costs) [2025] FCAFC 80 at [12] (the Court); Lim v Comcare [2019] FCAFC 104; (2019) 165 ALD 217 at [40]-[42] (the Court). In this case, when the FCFCOA orders are read together with the reasons for judgment, it is plain that the primary judge refused the application for an extension of time. Apart from the statement to that effect at J [5], the primary judge also stated (at J [80]):

Granting an extension of time for the filing of a judicial review application would be an exercise in futility and for that reason I dismiss the application. (emphasis added)

35    Conclusion – appeal is incompetent: It follows from the above that the appeal is incompetent. Properly construed, the primary judge’s judgment dismissed the application for an extension of time under s 477(2). An appeal from that judgment is excluded by s 476A(3)(a) of the Act.

C.    Can the proceeding be treated as an application for judicial review under s 39B?

36    Although the appeal is incompetent, it would be open to the Court to treat the purported “appeal” as an application for judicial review of the primary judge’s decision under s 39B of the Judiciary Act, which would be competent: see, as an example, Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [10] (the Court); and (on competency) Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [11] (the Court). It would be necessary to make further procedural orders to achieve this position; in particular, adding the FCFCOA as a third respondent: see ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [32] (the Court); DDC24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 646 at [10] (Wheelahan J).

37    If the Court were merely to dismiss this appeal as incompetent, that would leave open the possibility of the Appellants now applying for an extension of time to bring judicial review proceedings. For that reason, if this “appeal” raises any issue with legal merit that could be considered in judicial review proceedings, it would be a better use of judicial resources to consider it now.

38    Duties to unrepresented litigants: This approach accords with the Court’s duties to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial: see generally SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with Allsop CJ and Mortimer J agreeing); NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court). However, although the Court may be lenient in the standard of compliance which it expects from a litigant in person, that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Kumar at [21].

39    Issue would be whether FCFCOA judgment contains jurisdictional error: If this proceeding were treated as an application for judicial review of the FCFCOA judgment (rather than an appeal), the issue would become whether the primary judge’s reasons contain a “jurisdictional error”; that is, a serious legal error that results in an administrative decision lacking any legal force (or being “invalid’): LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] (Kiefel CJ, Gageler and Keane JJ). That is a different, and narrower, question than would be considered in an appeal from the primary judge: see, for example, DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; (2019) 268 FCR 64 at [63] (Rangiah J, with Reeves and Bromwich JJ agreeing). (That is also a different question from the issue before the primary judge, which was whether there was any jurisdictional error in the Tribunal’s decision.)

40    Jurisdictional error and Act, s 477(2): The categories of jurisdictional error for decisions of “inferior courts” (such as the FCFCOA) are different from, and narrower than, the categories of jurisdictional error for decisions by administrative bodies (such as the Tribunal): see generally DDC24 at [28]; CNC15 v Federal Circuit Court of Australia [2018] FCAFC 204 at [46]-[48] (the Court). As a general proposition, the question is whether the primary judge misconceived the nature of the function that the court was performing: CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at [15] (the Court); see also BLR23 v Federal Circuit and Family Court of Australia (Div 2) [2024] FCAFC 2; (2024) 301 FCR 129 at [25] (the Court).

41    The Full Court in CZA19 analysed what would amount to jurisdictional error in the context of s 477(2) of the Act in particular.

    CZA19 held that the FCFCOA would commit jurisdictional error if it misunderstood the nature and extent of the jurisdiction conferred by s 477(2). That might occur if, for example, the FCFCOA extended time in circumstances not authorised by s 477(2) or, conversely, denied the existence of power to extend time in circumstances when there was that authority; if the FCFCOA carried out a consideration that departed from the nature of the consideration that was required; or if the FCFCOA concluded that it would be in the interests of justice to extend time, but nevertheless did not do so: CZA19 at [17].

    The FCFCOA’s jurisdiction is also circumscribed by the nature of the application brought, in the sense that the FCFCOA is required to adjudicate on whether an extension of time is necessary in the interests of justice on the basis of the matters raised by the particular application: CZA19 at [18]-[19]. But the mere fact that a different view may be taken by other judges as to the nature and scope of the proposed ground(s) of review is not jurisdictional. What is required to demonstrate jurisdictional error is “a fundamental misunderstanding of the nature of the application such as where a judge addresses the wrong grounds, overlooks part of the grounds altogether or so fundamentally misunderstands the basis for the application that in effect the application is not considered”: CZA19 at [34]; BLR23 at [25].

42    No jurisdictional error in approach of primary judge: Applying those principles to this case, it cannot be said that there is any error, let alone jurisdictional error, in the approach that the primary judge took in deciding whether to grant an extension of time.

    The primary judge correctly understood the question as being whether his Honour was satisfied that it was necessary in the interests of the administration of justice to grant the extension of time (J [55]-[56]; Act s 477(2)). The factors referred to in J [56] are well-known, and are in keeping with the factors referred to in Katoa at [12].

    The primary judge found that the length and reason for the delay supported an extension of time, and the lack of prejudice to the Minister was neutral (J [66]-[77]). Those conclusions were well open to his Honour.

    The primary judge found that the lack of merit in the substantive application was dispositive (J [74]). To the extent that the primary judge might be seen as making a final assessment of the merits, that approach is positively supported by DDC24 at [34], and is at least consistent with Katoa at [18] (and is probably supported by that decision).

    There is a real question, in the light of CZA19, whether the primary judge’s conclusions about the merits of the arguments sought to be raised in the substantive application is a matter going to jurisdiction. However, it is not necessary to decide that question, because his Honour was plainly correct to find that the Appellants’ substantive application was wholly without merit, for the reasons he gave: see [51]-[58] below.

43    Appellants’ arguments: The Appellants in this proceeding seek to raise a wide range of arguments in the notice of appeal and the grounds in Mr Kumar’s affidavit (set out in [20] above). None of these arguments go any way towards establishing jurisdictional error on the part of the primary judge, or indeed any legal error.

44    Unfairness in outcome: Some of the Appellants’ arguments go only to the fairness of the outcome of the Tribunal’s decision; for example, the Appellants complain that the merits of their application for a visa were linked with the employer nomination, which was out of their control. Mr Kumar states “I am victim, I should not be punished for some other mistakes” (Notice of appeal, particular VII; see also particular IX). However, arguments of this sort do not assist the Appellants in these proceedings. This Court would at most consider whether the Tribunal’s decision was lawful (not whether the outcome was fair), and in fact the immediate issue for this Court in s 39B proceedings is the lawfulness of the primary judge’s decision: see [39] above.

45    Procedural fairness: The Appellants refer at points to there being a breach of procedural fairness (such as Mr Kumar’s affidavit [5] points a) and b)). The particular complaints seem to be (1) the Tribunal should have granted the Appellants more time so that Mr Kumar could find another employer to make a nomination for him (notice of appeal, particular XII), and (2) the primary judge should have granted an adjournment so that Mr Kumar could submit more information and could find a lawyer (notice of appeal, particular XXI).

    On point (1) above, it is not clear on the materials before the Court whether the Appellants ever asked the Tribunal for more time so that Mr Kumar could find another employer to provide a nomination. In any event, the Tribunal correctly held that it could only decide the visa application on the basis of the employer nomination by Preet Bros (AAT [15], [17]): see further [52]-[55] below. That is, it was not possible in law for Mr Kumar to seek a nomination from a different employer for the purposes of the Tribunal proceedings. That in turn means there could not be any breach of procedural fairness in the Tribunal not granting him more time to take that step.

    On point (2) above, there is no evidence before the Court that the Appellants applied for an adjournment before the primary judge. However, there is no right to legal representation in civil proceedings such as these, and it would be necessary to consider all the circumstances. Relevant factors would include whether the Appellants had had a reasonable time to obtain a lawyer, and the utility of granting an adjournment: see [29]-[30] above. And, separately, it is difficult to see what other information that Mr Kumar could have obtained that would be relevant to the judicial review proceedings before the primary judge: as his Honour held, a basic difficulty with Mr Kumar’s visa application is that it was not supported by an approved employer nomination for the position to which his application related (J [73]). Nothing in the materials before the Court suggests anything other than the primary judge provided the Appellants with a reasonable opportunity to present their case.

46    The Appellants also make some mention of bias (for example, notice of appeal particulars XXIX-XXX). However, the Appellants have not articulated what it is that (on their argument) could have led the Tribunal to decide the application other than on its legal and factual merits: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The mere fact that the delegate found that Mr Kumar did not satisfy the requirements for a visa does not go towards establishing any reasonable apprehension of bias (cf Mr Kumar’s affidavit, [5](c)).

47    Other matters: The Appellants also refer to other matters that are irrelevant on their face. For example, the Appellants refer to previous s 362C(5) of the Act (which applied when a person failed to appear before the Tribunal) (notice of appeal, particular XXII), and refer to s 58(1)(b) of the “Human Rights Act” (seemingly the Human Rights Act 2019 (Qld), which applies only to public entities of Queensland) (notice of appeal, particular XXXV, see also particular XXXII)). There are also multiple references to the “Judicial Review Act” (seemingly the Judicial Review Act 1991 (Qld), which applies to decisions of an administrative character made under Queensland legislation) (see notice of appeal, particulars XXII, XXVI, XXX, XXXII-XXXIII, XXXV-XLI). But the argument that the Appellants’ “human rights” are a mandatory relevant consideration is plainly incorrect on its face, because the argument relies on Queensland legislation that does not apply to Commonwealth decision-makers (cf particulars XXXII, XXXV). Otherwise the notice of appeal does not state what is said to give rise to the alleged legal error (as with the bare allegations of taking into account irrelevant considerations, or failing to observe procedures required by law: see particulars XXXII-XXXIV).

48    Finally, given that Mr Kumar is legally unrepresented, it is appropriate that I consider whether any other argument of substance arises squarely from the materials: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]-[10] (Colvin J). I am satisfied that neither the decision of the primary judge, nor the decision of the Tribunal, contains any self-evident error: see COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J).

49    Conclusions – no utility in treating proceeding as s 39B review: For these reasons, there is no utility in the Court treating these proceedings as judicial review proceedings under s 39B of the Judiciary Act. In judicial review proceedings, the Appellants would need to establish that the primary judge’s judgment contained jurisdictional error; that is, that the primary judge somehow fundamentally misunderstood the statutory task under s 477(2) of the Act. But there is no error, let alone jurisdictional error, in the approach of the primary judge.

50    A second reason not to reconstitute the proceedings as judicial review proceedings is that, even if there were jurisdictional error in the judgment of the primary judge (which there is not), it would be futile to set aside that judgment, because there is no possibility in law of the Tribunal making a different decision if the matter were remitted. That point is considered next.

D.    futility: THE UNDERLYING DECISION OF TRIBUNAL IS INCONTROVERTIBLY CORRECT

51    Although the immediate focus of these proceedings is the judgment of the primary judge (whether by way of appeal or judicial review), the underlying issue for the Appellants is the lawfulness of the Tribunal’s decision which refused their application for Employer Nomination visas. Normally it is no part of this Court’s role to decide whether an administrative decision is correct on its merits; however, as explained below, not only did the Tribunal make the only decision that was lawfully open to it at the time, but the Tribunal also could not make any different decision on remitter. That provides an alternative reason not to grant the Appellants any of the remedies they seek (such as setting aside the Tribunal’s decision and ordering it to re-make the decision according to law): those remedies would be futile.

52    Criteria for Employer Nomination visa: Mr Kumar applied for an Employer Nomination visa in the “Temporary Residence Transition” stream. That meant he had to satisfy (among other things) the criteria in cl 186.22 in Sch 2 to the Regulations. At the time of the visa application in 2017, those criteria included the following requirements (emphasis added):

186.223

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

(a)    nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

(b)    in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; 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.

…

(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.

53    It can be seen that cl 186.223(1)(a) required that there be a nomination in an application for approval that seeks to meet the requirements of reg 5.19(3). Briefly, reg 5.19(3) required (among other things) that the application for approval identify a person (who meets specified requirements), and an occupation in relation to the position (that meets specified requirements) (reg 5.19(3)(a)). And cl 186.223(2) required that the Minister “has approved” the nomination.

54    Singh FC (2017): Both the Tribunal and the primary judge referred to the Full Court decision in Singh, which considered the corresponding wording in the criteria for a subclass 187 visa. In that case (as here), the appellant’s application for a visa was refused, because the related employer application for the approval of a nomination had been refused at the time of the delegate’s and Tribunal’s decision: see Singh at [16]-[19]. Unlike this case, the employer did not seek merits review of that refusal. Instead, the appellant’s representative attempted to submit a new position nomination application in between the refusal of the nomination application and the delegate’s decision to refuse the appellant’s visa. The Department rejected that attempt, stating that it was not possible to attach a new employer nomination to an existing visa application: Singh at [21].

55    In the Full Court in Singh, Mortimer J (with Jagot and Bromberg JJ agreeing) upheld the Department’s decision that “the nomination” in cl 187.233 was limited to the original nomination which accompanied the visa application. Her Honour held that the words “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 (which also appear in cl 186.223(1)(a)) refer to an employer nomination that was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time (that is, the point at which the employer nomination is submitted for approval), and in a particular set of factual circumstances: Singh at [88]. This reasoning applies equally to the subclass 186 visa: see Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 222 at [22] (Farrell J).

56    For these reasons, the primary judge was correct in holding that the Tribunal in this case made the only decision that was open to it as a matter of law: the fact that there was not an approved employer nomination for Mr Kumar’s position at the time of the Tribunal’s decision meant that his visa application had to be refused. Nor could that deficiency in this visa application have been overcome by obtaining another employer nomination. In line with the nature of judicial review, this analysis assesses the lawfulness of the Tribunal’s decision on the basis of the circumstances at the time it was made (a “backwards looking” exercise): see [28] above.

57    Conclusions on futility – visa application must be refused: In addition, and for the same reasons, there is no possibility in law that any different decision could be made now if the matter were remitted to the Tribunal (now the Administrative Review Tribunal) (a “forwards looking” exercise). In other words, even if the Appellants had established some jurisdictional error in the decision of the primary judge or the Tribunal, the relief they seek could not achieve any useful purpose. That futility would provide a reason to refuse relief: see Singh at [82]; see also, on futility generally, Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181 at [47] (Besanko J, with Moore and Buchanan JJ agreeing).

58    This futility is compounded by the fact that the employer, Preet Bros, was de-registered in 2022, after the Tribunal’s decision: see [13] above. Quite apart from the other legal difficulties facing the Appellants, the Administrative Review Tribunal could not grant the visas sought, because the employer to which the position related no longer exists.

E.    Conclusion

59    It follows from the above that the appeal must be dismissed with costs. The appeal, as brought, is incompetent. The appeal should not be re-constituted as an application for judicial review, because there would be no utility in doing so. Not only is the primary judge’s judgment without any jurisdictional error (or any error), but the underlying decision of the Tribunal was and remains incontrovertibly correct, for the reasons just given.

60    Costs: The Minister seeks costs fixed in the sum of $3,500. The Court has power to award costs in a fixed sum: see Federal Court Act, s 43(3)(d); Federal Court Rules 2011 (Cth), r 40.02(b). In the case of proceedings to challenge migration decisions, the Rules set out an amount that may be claimed if an appeal or application is discontinued before hearing (currently $5,278), and a higher amount that may be claimed if an appeal or application is dismissed after hearing (currently $8,323): see Rules r 40.43, Sch 3 items 15.1 and 15.2. The amount sought by the Minister is lower than both of these amounts, and is reasonable.

Associate:

Dated:    2 July 2025