Federal Court of Australia

Shah v Minister for Immigration and Citizenship [2026] FCA 226

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration and Citizenship”.

2.    The appeal be dismissed.

3.    The first and second appellants pay the Minister’s costs in the fixed sum of $3,000.

4.    There be no order for costs in respect of the third and fourth appellants.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    This is an appeal of a judgment of the Federal Circuit and Family Court of Australia (Division 2) delivered on 28 October 2022: Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 882 (PJ).

2    The appellants are a family of four, each of whom is a citizen of Pakistan. The first appellant is 44-years old and is the husband of the second appellant, who is 40-years old. The third and fourth appellants are the minor children of the first and second appellants.

3    The third appellant was born in Australia and was granted Australian citizenship on 25 October 2024. That fact emerged during the hearing of the appeal and the legal representative for the Minister was given the opportunity to take instructions and confirm that the Minister does not dispute that the third appellant is now an Australian citizen. The fact that the third appellant is an Australian citizen does not affect the determination of this appeal. That said, the determination of this appeal has no practical result on the third appellant’s right as an Australian citizen to reside in Australia.

4    The fourth appellant arrived in Australia at age three and is currently studying for the Higher School Certificate.

5    A further child, who was also born in Australia, is not a party to this proceeding.

6    The first respondent is described as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now known as the Minister for Immigration and Citizenship. The second respondent, the Tribunal, filed a submitting notice save as to costs.

7    The decisions under appeal concern the refusal of an Employer Nomination (Class EN) (subclass 186) visa. The first appellant sought to satisfy the primary criteria: that he was the subject of an employer nomination that had been approved by the Department of Home Affairs. The remaining appellants sought to satisfy the secondary criteria: that they were members of the first appellant’s family. An important factor in the determination of each of the appellants’ visa applications was that the first appellant’s application be supported by a valid employer nomination. The second to fourth appellants’ visa applications at all times depended on the first appellant being granted a visa.

BACKGROUND

8    The appellants lodged subclass 186 visa applications on 10 May 2017. The first appellant relied on the nomination application made by his employer, Khan Group (Aust) Pty Ltd; the other appellants relied on their status as family members of the first appellant.

9    The nomination and visa applications were interdependent. The first appellant could only satisfy the primary visa criteria if his application was supported by an approved nomination.

10    The progress of the nomination application and the appellants’ visa applications proceeded as follows.

11    The Department refused the nomination by the Khan Group on 24 January 2018.

12    On 24 January 2018, the Department invited comment from the appellants on the nomination refusal on the basis that it was information that was potentially adverse to the appellants’ visa applications. The invitation expressly noted that if a response was not received within 28 days, and the application was not withdrawn, then the visa applications would be refused. Further, that if the applications were refused, the appellants may be entitled to apply for a merits review by the Tribunal. No response was forthcoming from the appellants and their visa applications were not withdrawn.

13    On 23 February 2018, a delegate refused each visa application because the first appellant was not the subject of an approved nomination and therefore did not meet cl 186.223 of Sch 2 of the Migration Regulations 1994 (Cth). The other appellants did not meet cl 186.311 of Sch 2 of the Regulations.

14    The Khan Group lodged an application for review of the Department’s decision to refuse the nomination with the Tribunal. The Tribunal affirmed the nomination refusal on 27 July 2020. The Khan Group did not thereafter seek judicial review of the Tribunal’s decision.

15    The appellants applied to the Tribunal for review of the delegate’s visa refusal on 10 March 2018.

16    On 22 October 2020, the Tribunal issued an invitation under s 359A of the Migration Act 1958 (Cth). The effect of the s 359A invitation was to inform the appellants that they were being invited to comment or respond to the information set out in the letter concerning the nomination refusal on the basis that the information was potentially adverse to the outcome of their visa applications. In bold text, it was stated that “Please note, however, that we have not made up our mind about the information.” Also in bold text, was the time for responding to the invitation: 5 November 2020. The invitation included that the response was to be written and that it could take the form of comments or a response, or alternatively a request for an extension of time accompanied by reasons for why the extension was sought. The penultimate paragraph of the invitation was in the following terms (original bold emphasis):

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.

17    The appellants did not respond in any way to the s 359A invitation.

18    On 9 November 2020, the Tribunal affirmed the delegate’s decision to refuse to grant a visa to each of the appellants. The decisive finding of the delegate in refusing to grant the visas was that the delegate was not satisfied that the first appellant was the subject of an approved related nomination for his visa. Accordingly, the first appellant did not meet the criteria in cl 186.223 of Sch 2 of the Regulations. As a consequence, the delegate was also not satisfied that the other appellants satisfied the criteria in cl 186.311 of Sch 2 of the Regulations as members of a family unit of a person who held a relevant visa.

19    The appellants sought judicial review of the Tribunal’s decision. On 28 October 2022, the primary judge dismissed the judicial review application as the appellants had failed to establish any jurisdictional error on the part of the Tribunal: PJ [26].

20    The appellants filed the present Notice of Appeal on 25 November 2022, accepted for filing on 7 December 2022, which raises four grounds of appeal.

21    The COVID-19 pandemic intervened resulting in a period in which in person hearings were deferred and the present appeal was part of a backlog of cases that were impacted.

22    The appellants did not comply with the Court’s orders to ready the appeal for hearing but appeared in person shortly after the hearing was called on. The fourth appellant did not appear at the hearing. The first appellant spoke for all appellants and explained that the fourth appellant could not attend the hearing due to the requirements of completing her Higher School Certificate. After the first appellant had made submissions, and with the assistance of an Urdu interpreter, I asked the second appellant if there was anything that she wished to add. The second appellant noted her desire for her children to stay in Australia and continue their studies and in time work in Australia. She informed the Court that she agreed with the submissions made by her husband.

23    In compliance with the Court’s directions, the Minister filed and served on the appellants the appeal book on 21 January 2026. On 2 February 2026, the Minister filed and served an outline of submissions on the appellants. The appellants acknowledged receipt of these materials and the first appellant confirmed he had reviewed the materials but that he was not a barrister and could not afford legal representation.

CONSIDERATION

24    I acknowledge the difficulty for the appellants as litigants in person. I am conscious of the difficulties experienced by litigants in person, particularly in a case such as this where the result of the proceeding will have a serious impact on the appellants. The appellants did not file written submissions but attended the hearing and made oral submissions. I have allowed for this when considering the oral submissions made by the first and second appellants at the hearing, who both did their best in making submissions. The first appellant did not need the services of the Urdu interpreter who was present throughout the hearing. The first appellant has lived and worked in Australia for over 20 years.

25    The majority of the submissions advanced concerned the substantive merits of whether in light of the whole of their circumstances the appellants should be permitted to continue to reside in Australia. That persons in the position of the appellants, without the aid of legal advice, would focus on that issue as the substantive issue is readily apparent. However, without criticism of the appellants, the heartfelt submissions made which were directed to the merits are not relevant to the issues which arise on this appeal. This is an appeal directed to the correction of error in the decision of the primary judge.

26    For the reasons below, I have concluded that none of the grounds of appeal established error on the part of the primary judge. Before turning to the specific grounds, there is an overarching difficulty that the appellants must confront as to the futility of remitting this matter to the Tribunal.

27    The relationship between the nomination application and the appellants’ visa applications are interdependent. The first appellant had to satisfy the criteria in cl 186.223 of Sch 2 of the Regulations. The first appellant could not do that unless he was the subject of an approved nomination. This was fatal to his visa application. The other members of his family were reliant in their applications on his application being successful. If his application was not successful, they could not satisfy cl 186.311 of Sch 2 of the Regulations. The prospect of a different outcome in respect of the appellants’ applications was foreclosed by the adverse outcome of the nomination proceeding, which had been finalised in July 2020. The Tribunal’s adverse determination in the nomination proceeding is fatal to the appellants’ visa application: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; 253 FCR 267 at [82], [88]-[89] (Mortimer J, Jagot and Bromberg JJ agreeing). Singh concerned a subclass 187 visa, but the reasoning applies equally to the subclass 186 visa: Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 222 at [22] (Farrell J).

28    I now turn to address the particular grounds raised.

Grounds 1 and 2

29    Ground 1 of the Notice of Appeal claims that the primary judge did not give the appellants a reasonable opportunity to present their case. By this, the appellants claim that they were denied procedural fairness.

30    Ground 2 of the Notice of Appeal claims that the primary judge should have granted leave to allow the appellants to particularise their grounds by seeking legal advice.

31    By these grounds the appellants allege that they were denied a reasonable opportunity to present their case before the primary judge. The appellants filed their judicial review application on 30 November 2020. A Registrar made orders on 4 February 2021 requiring the appellants to file and serve any amended application and any supplementary court book by 29 April 2021. Despite these orders, the appellants did not file an amended application or a supplementary court book.

32    On 25 August 2022, the primary judge listed the application for a hearing on 24 October 2022 and ordered that the appellants file and serve written submissions and any other material on which they sought to rely by 1 October 2022. No material or submissions were filed. The application then proceeded to a final hearing before the primary judge on 24 October 2022 which the appellants attended.

33    The primary judge recorded in his reasons for judgment that at the final hearing the appellants did not request the assistance of an interpreter. The appellants also had a copy of the court book and the Minister’s written submissions and were provided with a pen and paper: PJ [14]. The primary judge explained the purpose of the hearing and the role of the Court. The appellants made submissions in support of the judicial review application, and the Court explained the key issues before it: PJ [15]-[17]. The appellants were provided with the opportunity to present their case. They were given opportunities to particularise or amend their application and to provide any material on which they wished to rely.

34    To the extent that ground 2 is directed to a complaint that the primary judge denied procedural fairness by unreasonably refusing to adjourn, that complaint is not substantiated. The written reasons of the primary judge do not refer to any adjournment application. The appellants have not produced any transcript of the hearing before the primary judge to establish that such a request was made. Even if I assume that a request for an adjournment was made and that request was for the purpose of enabling the appellants to obtain legal representation, I am not satisfied that the appellants have established error on the part of the primary judge. Lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19] (McKerracher, Farrell and Banks-Smith JJ); EPH17 v Minister for Immigration and Border Protection [2019] FCA 824; 166 ALD 47 at [18] (Kenny J); Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6] (Heerey J); Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42(a)] (Derrington J, Greenwood and Logan JJ agreeing).

35    On the assumption that an adjournment application was in fact made, it is well established that the decision whether to adjourn is a discretionary decision which must be exercised judicially and will depend on the relevant individual circumstances: EPH17 at [18] (Kenny J); Jarrett at [78] (Mansfield J). In the present context, the following considerations were likely to weigh against the grant of an adjournment: the amount of time the appellants had to obtain legal representation; the steps the appellants had taken to obtain representation; the appellants’ explanation for any delay; and importantly, the utility of any adjournment: BSY16 v Minister for Home Affairs [2019] FCA 140 at [5] (Thawley J); Pallas at [42].

36    In the present appeal the appellants have not established that they made an adjournment request. If it be assumed they made such a request, they have not established the basis on which the application was made, for example, how much time did they seek, what was their explanation for why they had not obtained legal representation in the close to two years since they filed their application, or how much time were they asking for in order to obtain legal representation.

37    Moreover, the issue of utility would have presented a serious impediment to any request for an adjournment. Before the Tribunal, the determinative issue was that the appellants could not satisfy the essential criteria for the grant of the visa. The first appellant was not the subject of an approved nomination, so the Tribunal was obliged to make the decision that it did. For the same reason, the judicial review application was also futile as no useful result could flow from remittal to the Tribunal even if there were error: Singh at [82], [88]-[90]. On that basis, the grant of any adjournment, if one had been sought, would have served no utility where no different outcome could have eventuated.

38    For these reasons, grounds 1 and 2 must be dismissed.

Ground 3

39    By ground 3 the appellants contend that the primary judge misdirected himself by asking whether the Tribunal critically examined the appellants’ claims as opposed to whether the Tribunal applied the law correctly.

40    In exercising jurisdiction, the primary judge asked whether the Tribunal applied the law correctly. As part of that task, the primary judge was also required to consider whether the Tribunal examined the appellants’ claims and disposed of them correctly. As is evident from the Tribunal’s decision record, the Tribunal correctly identified that the relevant issue was whether the first appellant satisfied the criteria in cl 186.223 of Sch 2 of the Regulations, and consequently whether the other appellants satisfied the criteria in cl 186.311 of Sch 2 of the Regulations. The Tribunal found that the first appellant was not the subject of an approved nomination and therefore did not meet the requirements of cl 186.223, which was fatal to his visa application. As a result, the other appellants did not satisfy cl 186.311.

41    The appellants have not demonstrated error on the part of the primary judge. Ground 3 will be dismissed.

Ground 4

42    By ground 4 the appellants contend that the primary judge misdirected himself by asking whether the Tribunal provided the appellants with the right to be heard as opposed to whether the Tribunal put the appellants to the issues. The appellants contend that as a result they were not given a chance to present their case in front of the Tribunal.

43    At the hearing, the first appellant developed this ground by submitting that the appellants were denied procedural fairness as they were not given the opportunity to be heard in the Tribunal in the nomination proceeding. The nomination proceeding was a separate proceeding to which the appellants were not parties. What is important to the disposition of this appeal is that in this proceeding, the appellants were given the opportunity to participate. The Tribunal used the mechanism in s 359A(2) of the Migration Act to invite the appellants to comment or respond to the information for the visa that would be the reason, or part of the reason, for affirming the decision under review. In the s 359A(2) invitation in this proceeding, the appellants were invited to respond to the adverse information comprised of the nomination refusal. The appellants failed to respond, or request additional time to respond, before the prescribed period ended. Any request for more time to provide a response was required to be made before the prescribed period ended: s 359B(4). The combined effect of the cascading provisions in ss 359C(2), 360(3) and 363A was that the appellants were not entitled to appear before the Tribunal. The Tribunal had no power to permit them to appear: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; 183 FCR 413 at [25]-[32] (Jacobson, Gilmour and Foster JJ).

44    The Tribunal did not err by making a decision on the review without enabling the appellants to appear before it. The appellants were put on notice in the s 359A invitation that if they did not provide comments or a response within the time allowed, then the Tribunal might make a decision on the review without taking any further action to obtain their views, and they would lose any entitlement they might otherwise have had to appear at a hearing.

45    The appellants have not demonstrated error for which they contend in Ground 4, even allowing for the way in which the submissions on this ground were developed at the hearing. Ground 4 must be dismissed.

CONCLUSION

46    The appeal will be dismissed with the first and second appellants to pay the Minister’s costs in the fixed sum of $3,000. It is appropriate to grant costs in the fixed sum given the dismissal of each of the grounds of appeal.

Associate:

Dated:    9 March 2026

SCHEDULE OF PARTIES