Federal Court of Australia

Begum v Minister for Immigration and Citizenship [2026] FCA 227

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 first respondent’s costs as agreed or assessed.

4.    There be no order for costs in respect of the third appellant.

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 from a decision of the Federal Circuit and Family Court of Australia (Division 2) delivered on 28 October 2022 in Begum v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 885. The appellants, a family of three, seek to challenge the dismissal of their application for judicial review of a Tribunal decision affirming the refusal of their Regional Employer Nomination (subclass 187) visa applications.

2    The first appellant was the primary visa applicant, and the second and third appellants sought visas as members of her family unit. The Tribunal affirmed the refusal on the basis that there was no approved nomination. The primary judge, after reviewing the Tribunal record, found no jurisdictional error and dismissed the judicial review application.

3    The present notice of appeal was filed on 10 November 2022. 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.

4    I acknowledge the difficulty for the appellants as litigants in person who do not appear to have had the benefit of legal assistance at any time in relation to this proceeding. 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 appellant (on behalf of the second and third appellants) at the hearing, who did her best in making submissions.

5    For the reasons which follow I have concluded that the appeal must be dismissed. The appellants have not established error on the part of the primary judge.

BACKGROUND

6    The first appellant is a citizen of India born in April 1982. The second appellant is a citizen of India born in January 1975 and is the first appellant’s husband. The third appellant is a citizen of India born in September 2009 and is the daughter of the first and second appellants.

7    On 17 March 2018, the first appellant applied for a subclass 187 visa (Direct Entry Stream) as the primary visa applicant. In her application, she relied on a nomination by Triple C Catering Pty Ltd for the occupation of cafe or restaurant manager. The second and third appellants were included in the subclass 187 visa application as members of the family unit of the first appellant.

8    On 16 March 2020, the delegate refused the appellants’ subclass 187 visa application on the basis that the first appellant was not the subject of an approved nomination and therefore did not meet the requirements of cl 187.233(3) of Sch 2 of the Migration Regulations 1994 (Cth). The delegate noted that the nomination application lodged by Triple C in relation to the appellants was withdrawn on 7 February 2020.

9    On 31 March 2020, the appellants sought merits review of the delegate’s decision before the Tribunal.

10    On 1 October 2020, the Tribunal invited the appellants by email to attend a hearing by telephone scheduled for 9:30am on 2 November 2020. On 7 October 2020, the first appellant emailed the Tribunal and requested a face-to-face hearing because she was “not comfortable at all in explaining [herself] over the phone”. The first appellant requested that the Tribunal advise her the date and time for a face-to-face hearing as early as possible. On 13 October 2020, the Tribunal emailed the appellants and advised them that the hearing had been postponed.

11    On 16 October 2020, a Tribunal officer contacted the first appellant by mobile phone to discuss if she had an appropriate device for a video hearing. The first appellant told the Tribunal officer that she had a laptop and a smartphone, that both devices had a webcam and speaker/microphone, and that both devices did not have MS Teams software installed. The first appellant referred to her email to the Tribunal dated 7 October 2020 and advised the Tribunal officer that she did not wish to have a video hearing as she was not comfortable with telephone or video hearings. The Tribunal officer advised the first appellant that they would make a note of her concerns and pass them on to the presiding Member.

12    On 17 October 2020, the Tribunal notified the appellants by email that the hearing would proceed by video conference because: (1) s 6.1 of the COVID-19 Special Measures Practice Direction – Migration and Refugee Division (the COVID-19 Practice Direction) provided that the Tribunal would not hold any hearing in person except in exceptional circumstances with hearings being conducted by telephone, video, or a combination of telephone and video; and (2) the presiding Member was not satisfied that there were exceptional circumstances that justified an in person hearing. The Tribunal also informed the appellants that it was open to them to make a further request to change the mode of the hearing if their circumstances changed or if they had further information about their situation that they wished to bring to the attention of the Tribunal. In the same letter, the Tribunal invited the appellants to attend a hearing by video scheduled for 10:00am on 1 December 2020.

13    On 1 December 2020, the appellants attended the scheduled hearing by video.

14    On 2 December 2020, the Tribunal affirmed the decision under review. On 3 December 2020, the Tribunal notified the appellants of its decision by email.

15    On 24 December 2020, the appellants applied to the Federal Circuit and Family Court of Australia (Division 2) for judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth).

DECISION OF THE TRIBUNAL

Decision to hold a hearing by video

16    In its reasons for decision, the Tribunal summarised its letter to the appellants dated 17 November 2020 for holding the hearing by video: T [10].

(1)    Under s 6.1 of the COVID-19 Practice Direction, the Tribunal would not be holding hearings in person except in exceptional circumstances.

(2)    The Tribunal acknowledged the importance of the matter to the appellants. Further, that in some complex matters giving evidence by telephone or video might present challenges. However, the Tribunal concluded that the issue before it was not complex. That was because the merits review turned on whether the first appellant was the subject of an approved nomination under cl 187.233(3) of Sch 2 of the Regulations.

(3)    After carefully considering the request for an in person hearing and the circumstances of the case the Tribunal had determined that a video hearing would provide a fair opportunity for the first appellant to give evidence and present arguments and for the Tribunal to question the appellants in a manner that was procedurally fair.

(4)    Accordingly, the Tribunal concluded that there were no exceptional circumstances that would justify the hearing proceeding as an in person hearing.

17    The Tribunal informed by its letter that the appellants could make a further request if their circumstances changed or if they had further information on the issue that they wished to bring to the Tribunal’s attention: T [10].

No approved nomination

18    The first appellant’s evidence before the Tribunal was that Triple C withdrew its nomination application because the Department had taken too long to consider it and that as a result Triple C had found someone else to fill the nominated position. The Tribunal considered this evidence but concluded that because the nomination application had been withdrawn, the first appellant did not meet cl 187.233(3) of Sch 2 of the Regulations. In short, there was neither an approved nomination nor a pending review application in respect of the nomination application upon which the visa applications were predicated. The Tribunal noted that the legislative framework did not permit the first appellant to proceed on the basis of a new or alternative nomination application. The result was that the first appellant could not meet the essential requirement for the issue of a visa.

19    The Tribunal observed in its reasons that the circumstances affecting the appellants were both difficult and out of the control of the first appellant. However, the Tribunal did not have any power to waive cl 187.233(3) of Sch 2 of the Regulations. The Tribunal invited the appellants to make any further submissions or comments, and they responded stating that they had nothing further to add.

Disposition

20    The Tribunal found that the first appellant did not meet cl 187.233(3) of Sch 2 of the Regulations because she was not the subject of an approved nomination. The Tribunal further found that the second and third appellants did not meet the secondary criteria as dependents under cl 187.311 of Sch 2 of the Regulations. Accordingly, the Tribunal dismissed the application.

DECISION OF THE PRIMARY JUDGE

21    On 28 October 2022, the primary judge dismissed the judicial review application with costs for the following reasons:

(1)    The Tribunal has discretion under s 366(1) of the Migration Act to conduct a hearing by any of the methods referred to in that section, including by telephone or any other means of communication, which it may exercise of its own motion and an applicant has no “right” conferred by ss 360 or 360A of the Migration Act to appear in person before the Tribunal: PJ [19].

(2)    The Tribunal’s exercise of its discretion to hold a hearing by Microsoft Teams video was reasonable in all the circumstances: PJ [20].

(3)    The appellant’s request for “more time to find another nominator” was not put to the Tribunal but was in any event misconceived as cl 187.233(3) of Sch 2 of the Regulations could only be satisfied by approval of the original nomination which accompanied the visa application: PJ [21]. For the same reason, it would be futile to remit the matter back to the Tribunal for redetermination even if an error was established: PJ [23].

(4)    The request for the Court to set aside the Tribunal’s decision because of the severe impact of COVID-19 on businesses was not an available ground of review: PJ [22].

22    The primary judge noted that because the appellants were unrepresented, the primary judge had perused the Tribunal decision record but was unable to ascertain any unarticulated jurisdictional error: PJ [25].

GROUNDS OF APPEAL

Ground 1: not proper ground of appeal

23    The appellants raise four numbered grounds of appeal. The first numbered ground is not a ground of appeal. It is a gracious acknowledgment by the appellants of the generosity and compassion of the primary judge.

24    I will move directly to ground 2.

Ground 2: compelling and compassionate circumstances

25    By ground 2 the appellants contend that there were compelling and compassionate circumstances that the Tribunal and the primary judge should have considered, namely that the appellants were “victims at the hand of the sponsor”.

26    The difficulty with this ground is twofold. The first insurmountable hurdle for the appellants is that the reasons for the refusal or withdrawal of the nomination application are not capable of establishing error in the Tribunal’s decision or the primary judgment. The Tribunal was correct to conclude that it did not have any power to waive compliance with cl 187.233(3) of Sch 2 of the Regulations by reason of any compelling or compassionate circumstances. The second hurdle is that the reasons of the Tribunal demonstrate that it did appreciate that the circumstances relating to the withdrawal of the nomination were difficult for the appellants and out of their control but correctly concluded that it did not have power to waive compliance with the essential criteria for the issue of the relevant visas.

27    Ground 2 must be dismissed.

Ground 3: failure to allow the appellants to provide another nomination

28    By ground 3 the appellants contend that in the circumstances of the COVID-19 pandemic, the Tribunal failed to allow the appellants to provide another nomination to seek to meet the visa criteria.

29    This ground does not establish error because an applicant for a subclass 187 visa can only rely on the original nomination application in which they were nominated and which was declared at the time of the subclass 187 visa application: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; 253 FCR 267 at [81]-[91] (Mortimer J, Jagot and Bromberg JJ agreeing at [1], [2] respectively). An applicant for a subclass 187 visa cannot rely on either a new nomination application lodged by the original nominator after the subclass 187 visa was lodged or a nomination application lodged by a new (alternative) nominator. No error has been demonstrated in the conclusion of the primary judge that the judicial review application lacked utility because the Tribunal would be bound to affirm the decision even if the matter were to be remitted.

30    Ground 3 must be dismissed.

Ground 4: failure to consider the first appellant’s qualifications and compassionate circumstances or make a “recommendation” to the Minister

31    By ground 4 the appellants contend that the Tribunal failed to consider the first appellant’s qualifications and compassionate circumstances including the severe consequence of the withdrawal of the nomination. Further, that the Tribunal failed to make a “recommendation” to the Minister. This ground was not raised before the primary judge but has been briefly addressed by the Minister.

32    No error is established by this ground. The Tribunal expressly considered the first appellant’s qualification: T [16]. As I have mentioned, the Tribunal referred to and acknowledged that it understood the circumstances attending the withdrawal of the nomination were difficult and out of the control of the appellants: T [20]. For the reasons already given, the Tribunal was not able to waive compliance with the requirements of cl 187.233(3) of Sch 2 of the Regulations by reason of any compelling or compassionate circumstances.

33    The final contention under this ground is that the Tribunal failed to refer the appellants’ matter for Ministerial intervention. The Tribunal’s referral or non-referral for Ministerial intervention was not within the discharge of the Tribunal’s duty of review under the Migration Act and therefore is not amenable to judicial review: Fernandez v Minister for Immigration and Border Protection [2015] FCA 1265 at [81] (Robertson J).

34    Ground 4 will be dismissed.

CONCLUSION

35    For the reasons set out above, the appeal will be dismissed with costs.

Associate:

Dated:    9 March 2026