Federal Court of Australia

Chaudhari v Minister for Immigration and Citizenship [2025] FCA 1055

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.    Pursuant to Div 9.6 of the Federal Court Rules 2011 (Cth), the first applicant be appointed litigation representative for the third applicant nunc pro tunc from 20 March 2024, and the requirement in r 9.63(3) of the Rules to file an affidavit be dispensed with.

4.    The application for leave to appeal is dismissed.

5.    The first and second applicants pay the first respondent’s costs to be agreed, or failing agreement, to be assessed.

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

REASONS FOR JUDGMENT

DOWNES J

1    This is an application for leave to appeal from a decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA): Chaudhari v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 299 (PJ). By that decision, the primary judge dismissed an application for an extension of time within which to file an application to review a decision of a Registrar, who summarily dismissed an application for judicial review of a decision of the former Administrative Appeals Tribunal. The Tribunal’s decision, in turn, was to affirm the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the first respondent) to refuse to grant the applicants Regional Employer Nomination (subclass 187) visas.

2    The first applicant is Mrs Manishaben Pavankumar Chaudhari, whose husband, Mr Pavankumar Dalsangbhai Chaudhari, is the second applicant. The first and second applicants are citizens of India, from the state of Gujarat. Their daughter Miss Antra Pavankumar Chaudhari is the third applicant (together, the applicants).

3    The applicants appeared at the hearing of this application in person, with the first applicant appearing on behalf of the second and third applicants and assisted by a Gujarati interpreter.

4    For the reasons that follow, the application must be dismissed with costs. Other ancillary orders will also be made reflecting the change of name of the first and second respondents and appointing the first applicant as the litigation representative of the third applicant.

Background

5    On 14 September 2016, the first applicant made an application to the Department of Home Affairs for a Regional Employer Nomination (subclass 187) visa in the Direct Entry stream of the Regional Sponsored Migration Scheme (visa application), based on the first applicant’s nomination to work in the position of “Retail Buyer” for Krishna Group Pty Ltd, the purported employer sponsor (the sponsor). The second and third applicants were included in the first applicant’s visa application as members of her family unit (the third applicant being added after she was born in 2017).

6    On 20 July 2018, the Department invited the first applicant to comment on information that the parallel nomination application submitted by the sponsor had been refused that same day and accordingly, her visa application could not be approved. No response was given by the first applicant.

7    On 3 September 2018, a delegate of the Minister refused the applicants’ visa application. The ground for refusal was that the first applicant did not meet cl 187.233(3) of Sch 2 to the Migration Regulations 1994 (Cth) because she was not the subject of an approved employer nomination, and as a result the second and third applicants did not meet the criteria in cl 187.311.

8    On 17 September 2018, the applicants with the assistance of a migration agent applied for merits review of the delegate’s decision in the Tribunal. On 13 May 2021, the Tribunal wrote to the applicants’ representative inviting the applicants to attend a hearing scheduled for 1 June 2021. On 25 May 2021, the applicants’ representative wrote to the Tribunal saying that they were unable to “get a hold of the applicant”, but they had been informed that “the applicant” would not be attending the hearing. On 26 May 2021, the applicants’ representative wrote to the Tribunal, attaching a written request from the first applicant that the hearing be postponed.

9    On 27 May 2021, the Tribunal advised the applicants that it had decided not to postpone the hearing and advised that the hearing would proceed by way of telephone. On the same day, the applicants’ representative advised that the first applicant would not be attending the hearing and that she had requested that a decision be made “based on the documentation on file”.

10    On 28 May 2021, the Tribunal requested that the applicants’ representative provide a “Form MR 19 Response to Hearing Invitation” confirming that the applicants would not be attending the hearing and that they consented to a decision being made on the papers, and the applicants’ representative complied.

11    On 31 May 2021, the Tribunal proceeded to affirm the decision of the delegate to refuse to grant the applicants visas, with a notification of this decision sent to the applicants on 2 June 2021. The Tribunal indicated in its decision record (at [15]) that when the sponsor’s nomination application was refused by a delegate of the Minister, the sponsor lodged its own review application with the Tribunal. The Tribunal affirmed the refusal decision on 13 April 2021, for the reason that the sponsor did not satisfy reg 5.19(4) of the Regulations which pertains to the general requirements for approval of a nomination application.

12    For that reason, the Tribunal found that without an approved employer nomination, the first applicant did not meet cl 187.233 of Sch 2 to the Regulations, and as a consequence the second and third applicants, being secondary applicants applying as members of her family unit, did not meet cl 187.311.

13    The Tribunal in its decision record also relayed the applicants’ request for a postponement of the hearing and elaborated that where no medical certificate or expert opinion was provided on which the applicant based her request for a postponement, little weight could be given to the documentary evidence which the applicant provided.

14    On 29 June 2021, the applicants filed an application in the FCFCOA for judicial review of the decision of the Tribunal. The Minister made an application seeking summary dismissal of the judicial review application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules) on the basis that the applicants had no reasonable prospect of successfully prosecuting the proceeding or claim.

15    On 16 January 2024, a Judicial Registrar of the FCFCOA summarily dismissed the application for judicial review, providing reasons for that decision on 17 January 2024: Chaudhari v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 19 (RJ). The Registrar found that there was a denial of procedural fairness to the applicants by the Tribunal’s failure to comply with its obligation under s 359A of the Migration Act 1958 (Cth) to disclose to the applicants and invite them to comment on certain information that would be the reason or part of the reason for affirming the decision under review. In the Registrar’s view, the outcome of the Tribunal’s separate decision concerning the sponsor’s nomination application formed the reason the Tribunal affirmed the decision to refuse to grant the applicants visas, and this was accordingly information that enlivened the obligation under s 359A(1): RJ [29]. Section 359A(1) at the relevant time provided as follows:

(1) Subject to subsections (2) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

16    The Registrar determined that it mattered not that the applicants’ representative was evidently aware of the Tribunal decision concerning the sponsor (in light of an email that the representative sent to the Tribunal on 28 April 2021 which says they had “received the decision on nomination from AAT” and which asked for an update on the applicants’ review application), and neither was the applicants’ waiver of the right to a hearing a waiver of the right to have this information put to them pursuant to s 359A: RJ [30]–[31]. Relying on the decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon (2023) 298 FCR 400; [2023] FCA 717 at [95] (Wigney J), the Registrar determined that the breach of the obligation in s 359A(1) was a jurisdictional error, even if the error would have made no difference to the outcome of the Tribunal review process: RJ [32].

17    Nonetheless, notwithstanding the jurisdictional error, the Registrar held that for the purpose of the judicial review application, the applicants would also need to persuade the Court that it is appropriate to exercise its discretion to grant the constitutional writ relief sought: RJ [33]. The Registrar considered that it would be futile to grant the relief sought by the applicants remitting the matter for reconsideration by the Tribunal, in circumstances where the first applicant in any case did not meet the criteria under cl 187.233(3) in the absence of an approved nomination by the sponsoring employer: RJ [16]–[21]. The Registrar noted that the “position” referred to in cl 187.233(3) for which a visa applicant is nominated is “a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances”: Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 (Singh 2017) at [88] (Mortimer J (as her Honour then was), Jagot and Bromberg JJ agreeing at [1]–[2]); cited with approval in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 299 FCR 464; [2023] FCAFC 123 (Singh 2023) at [141] (Raper J, Charlesworth and O’Sullivan JJ agreeing at [62] and [65]).

18    Accordingly, as the applicants confirmed to the Registrar that the first applicant had ceased working for the sponsor in 2019 and that the sponsor explicitly told the applicants that the sponsor would not be filing a Court application for review of the Tribunal’s decision in respect of the nomination (the deadline by which the sponsor could do so without requiring an extension of time having expired in June 2021), the Registrar was satisfied that there was no reasonable prospect that the sponsor’s nomination for the first applicant would ever be approved, so the applicants would never be able to satisfy the criteria for the grant of the visa even if the matter was remitted to the Tribunal: RJ [20]–[21].

19    It was determined by the Registrar that this presented an insurmountable impediment to the applicants successfully prosecuting their application for judicial review: RJ [16]. Accordingly, the Registrar was satisfied that no judicial officer, acting judicially, would exercise their discretion in favour of remittal to the Tribunal, as to do so would pointlessly subject the applicants and the Tribunal to another Tribunal review process which would inevitably end with an adverse decision premised on the first applicant’s non-satisfaction of cl 187.233(3): RJ [33]. It was decided that it was therefore appropriate to summarily dismiss the application.

20    On 11 February 2024, the applicant filed in the FCFCOA an application for review of the decision of the Registrar, which was treated as an application for an extension of time because the 7-day time limit within which to do so under s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 21.02(1) of the FCFCOA Rules had passed: PJ [2].

21    At the hearing before the primary judge on 7 March 2024, the second applicant, speaking on behalf of the other two applicants, declared that he knew that the sponsor did not have approval of the nomination, but that the purpose for which the application for judicial review of the Registrar’s decision was sought was to allow the applicants to extend the duration of their stay in Australia for as long as they possibly could: PJ [10].

22    On 7 March 2024, the primary judge refused the application for an extension of time within which to seek review of the Registrar’s decision and dismissed the substantive application for review: PJ [19]. His Honour considered that the reason given by the second applicant for the filing of the application 18 days out of time, being that the applicants did not have legal assistance, was not an adequate excuse: PJ [14]–[16]. His Honour noted that there could be no prejudice to the Minister in granting an extension of time, where the Minister did not appear at the hearing: PJ [12]. Nonetheless, in considering whether the merit of the application warranted an extension of time, his Honour observed that the basis for the decisions of both the Department and Tribunal was that the prerequisite for the visa, being that the applicant has an approved nominated employer, was not met: PJ [8]. His Honour considered that in the circumstances including the “very honest concession” made by the second applicant at the hearing, there could never be said to be an arguable case for the relief sought by the applicants: PJ [10]. On 20 March 2024, the applicants filed the present application for leave to appeal from the orders of the primary judge, along with an affidavit of the first applicant affirmed 14 March 2024 which contained annexed to it a draft notice of appeal. The grounds as they appear in the application which substantially mirrored those in the draft notice of appeal were:

1.    The Hon. Federal Circuit Court Judge erred in dismissing an application for judicial review without giving consideration of fact presented at the AAT hearing.

2.    The Hon. Federal Circuit Court Judge made legal error in his judgement by not properly Appling provision of s .36 Migration Act – 1958

3.    The Administrative Appeals Tribunal (AAT) erred in its judgment by not applying cl.s65 of the Migration Act – 1958

23    Other than relaying the procedural history, the first applicant’s affidavit requested this Court to consider her “circumstance and mistake made by the Federal Circuit Court Judge and Administrative Appeals Tribunal” and allow the appeal; however, there were no particulars provided of those grounds. The orders sought in the application were:

4.    An order that the application for leave to appeal be heard by a single judge of this Court.

5.    An order that subject to any contrary direction of the Court, the application for leave to appeal be heard concurrently with or, alternatively, immediately before the appeal described in the draft notice of appeal filed with this application.

6.    A direction that the parties comply with Part 36 of the Federal Court Rules 2011.

7.    An order that the order of the Federal Circuit Court be quashed.

8.    A writ of mandamus directed to the Administrative Appeals Tribunal (AAT) or Minister requiring them to determine the Appellant’s application according to law.

9.    An injunction restraining the Minister by himself or by his Department, officers, delegates or agents from relying upon the decision of the AAT.

10.    Any appropriate relief Honourable Court may think so fit.

11.    Costs

24    On 10 April 2024, the second respondent filed a notice submitting to any order the Court may make save as to costs and accordingly took no active part in the proceedings.

25    On 1 August 2025, the Minister filed an outline of submissions.

26    Pursuant to directions made by Registrar McCormick on 17 April 2024, the applicants (being unrepresented) were required to file any outline of submissions on which they relied by no later than 10 business days before the hearing, that is, by 15 August 2025. They did not file any submissions. The Court wrote to the first applicant on 20 August 2025 reminding her of the directions and advising that if the applicants intended to file written submissions, they would need to write to my chambers requesting that the orders be varied to allow more time for them to do so.

27    Later that evening, the first applicant emailed a handwritten letter to the Court which requested, in effect, an adjournment of the hearing set down for 29 August 2025 because the first applicant said she had a medical appointment. She requested that it be rescheduled to a later date to allow her “more time to be present” as she wished to be “better prepared to properly present [her] situation”. No indication was given as to an intention to file written submissions. As this application for leave to appeal was filed on 20 March 2024 and the parties were on notice as to the listing of the final hearing from 27 June 2025, I determined that the applicants have had sufficient opportunity to prepare and make themselves available for the final hearing date and to provide adequate notice to the Court if they were unable to do so. In the absence of any further evidence explaining why the applicants required more time or the nature of the first applicant’s medical appointment, I decided to refuse the adjournment request.

28    The applicants did not file written submissions. When the first applicant appeared at the hearing, she acted on behalf of the second and third applicants (who sat in the public gallery). I asked through the Gujarati interpreter if she would like to make any submissions. She replied she has no documents to provide and there was nothing she would like to say.

Legal Framework

29    As the Minister submitted, the applicants require leave to appeal from the orders of the primary judge in accordance with s 24(1A) of the Federal Court of Australia Act 1976 (Cth): CIK23 v Minister for Immigration and Citizenship [2025] FCA 896 at [11]–[16] (Bromwich J).

30    Whether leave to appeal should be granted involves the following considerations as summarised in Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 at [5] (Perram, Moshinsky and Hespe JJ):

(1)    Whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court exercising its appellate jurisdiction; and

(2)    Whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

31    The applicants bore the onus of making out those elements: SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [8] (Flick J).

Consideration

Ground one

32    The applicants did not contend that the primary judge erred in failing to find that the Tribunal’s decision was made in error by virtue of a failure to comply with s 359A of the Migration Act. Nonetheless, as the Minister has addressed this argument in his submissions and it was also referred to by the Registrar, it is appropriate to determine whether such a ground of appeal is arguable on the materials.

33    The Tribunal’s decision in this case was not supported by an independent line of reasoning unaffected by what the Registrar identified as the s 359A error. The sole basis for the decision was that the first applicant could not meet the cl 187.233(3) criteria as a result of the refusal of the sponsor’s nomination application which was affirmed by the Tribunal. This was acknowledged by the Minister’s submissions at [31]. As this was the information which the Tribunal failed to disclose to the applicants and invite a response, were this to be a breach of s 359A, it would have infected the core of the Tribunal’s decision: cf Minister for Immigration, Citizenship and Multicultural Affairs v Qazizada [2024] FCA 989 at [24] (Perram J).

34    However, it is not necessary for me to determine whether there in fact was a breach of s 359A by the Tribunal, or whether the primary judge erred in failing to find as such. That is because this is a case where it would have been appropriate for the primary judge to refuse relief on discretionary grounds.

35    The evidence before the Tribunal did not permit a finding that the applicants met the requisite criteria for the Regional Employer Sponsored visa, in the absence of an approved nomination of the first applicant by a sponsoring employer, as required by cl 187.233(3) of Sch 2 to the Regulations. Even if the Tribunal had informed the applicants in accordance with s 359A of the Migration Act of its separate decision to affirm the refusal of the sponsor’s nomination application, there is no prospect that the first applicant could have met the criteria in cl 187.233(3) of Sch 2 to the Regulations at the time of the Tribunal’s decision on review, because the sponsor’s nomination had been refused and that refusal affirmed by the Tribunal.

36    Consequently, there is no prospect that the second and third applicants, being secondary applicants applying for the visa as members of the first applicant’s family unit, could meet cl 187.311.

37    Further, the applicants confirmed to the Registrar that the first applicant had ceased working for the sponsor in 2019 and the sponsor had advised the first applicant that it would not be filing a Court application, so it could not have challenged the Tribunal decision regarding the nomination: RJ [18].

38    For these reasons, I am satisfied that there is no reasonable prospect of the first applicant ever receiving an approved nomination for the particular “position” which was the basis for the visa application: Singh 2017 at [88]; Singh 2023 at [141].

39    It is for that reason that it can be said with some certainty that remittal to the Tribunal would be futile, because the applicants do not and could not meet the criteria required for grant of the visa. For the same reason as given by the Registrar, even where a jurisdictional error was established on the basis of a denial of procedural fairness, this futility would provide suitable grounds for the primary judge’s refusal of the discretionary relief sought by the applicants: Antoon at [118]–[119], [138], [143]; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [28]–[29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), see also [76] (Kirby J).

40    In this case, the Court can be positively satisfied that the Tribunal’s compliance with the relevant obligation in s 359A could not realistically have made any difference: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 (Mason, Wilson, Brennan, Deane and Dawson JJ); Antoon at [146].

41    To grant leave to appeal would be a barren exercise where the applicants are unable to satisfy an essential criteria for the grant of the visa even upon remittal to the Tribunal, similar to the “fatal futility” of pursuing judicial review of a Tribunal decision affirming the refusal to grant an onshore protection visa, whilst outside Australia with no right to return: EKW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1414 at [4], [22]–[23] (Cheeseman J); citing CVC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 556 at [25]–[27] (Yates J).

42    Accordingly, ground one gives no reason to doubt the correctness of the decision of the primary judge.

Ground two

43    As submitted by the Minister, s 36 of the Migration Act has no relevance to these proceedings, because nothing in the material before the Court indicates that the applicants have made any application for protection visas (as defined by s 35A of the Migration Act). It follows that ground two gives no reason to doubt the correctness of the decision of the primary judge.

Ground three

44    By ground three, the applicants contend that the Tribunal erred by not applying s 65 of the Migration Act. Section 65 of the Migration Act states that the Minister, after considering a valid visa application, is to grant it if satisfied that the relevant criteria have been satisfied, that any visa application charge payable is paid, and that the grant of the visa is not otherwise prevented. If not so satisfied, the Minister is to refuse to grant the visa.

45    As submitted by the Minister, when conducting a review under s 348 of the Migration Act, the Tribunal is authorised to exercise the powers conferred by the Act on the decision-maker, and by that mechanism is to come to its own conclusion as to the proper performance of the duty that s 65 imposes on the Minister.

46    The applicants have not particularised how the Tribunal is said to have breached or failed to apply s 65. Further and in any event, it is not apparent how this ground could be successful on any interpretation of the ground and considering the materials before the Court: see DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [10] (Colvin J). That is because the Tribunal made a finding that the applicants failed to meet the requisite visa criteria, which by reason of s 65(1)(a)(ii) led to the decision to affirm the refusal to grant visas to them. The Tribunal therefore gave effect to s 65 of the Migration Act.

47    It follows that ground three gives no reason to doubt the correctness of the decision of the primary judge.

No substantial injustice if leave is refused

48    In light of the futility of any remittal, I am not satisfied that any substantial injustice will arise by refusing the application for leave to appeal.

Conclusion

49    For those reasons, the application for leave to appeal must be dismissed.

Associate:

Dated:    2 September 2025