Federal Court of Australia

Sadek v Minister for Immigration and Citizenship [2026] FCA 503

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed.

3.    The first appellant pay the first respondent’s costs of the appeal, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

OWENS J:

1    This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2): Sadek v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 99.

2    The first appellant is a citizen of the Lebanese Republic. On 20 March 2017 he applied for a Temporary Business Entry (Class UC) (Subclass 457) visa. The first appellant’s wife and daughter were included in the visa application as members of his family unit. The first appellant has since separated from his wife, and she has played no part in this appeal. His daughter is the second appellant.

3    The criteria for the Subclass 457 visa for which the first appellant applied were set out in the Migration Regulations 1994 (Cth), and included (relevantly to the first appellant’s application) that in clause 457.223(4)(a) of Schedule 2:

The applicant meets the requirements of this subclause if:

(a)    each of the following applies:

(i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

(ii)    the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

(iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; …

4    In order to satisfy that criterion, the first appellant relied upon a nomination in relation to him that had been submitted for approval by VB Built Pty Ltd. A delegate of the Minister, however, refused to approve that nomination. VB Built Pty Ltd then sought review of that decision in the Administrative Appeals Tribunal.

5    The appellants’ applications for their visas were rejected by a delegate of the Minister on 5 June 2018, on the basis that the criterion in clause 457.223(4)(a) of Schedule 2 was not satisfied. The appellants then sought review of that decision in the Tribunal.

6    On 11 January 2021, the Tribunal affirmed the decision in relation to VB Built Pty Ltd’s nomination. That company has not sought judicial review of that decision.

7    On 13 January 2021, the Tribunal wrote to the appellants inviting them to comment on the fact that the Tribunal had decided to refuse VB Built Pty Ltd’s application for approval of a nomination. On 27 January 2021, the appellants’ representative emailed the Tribunal in the following terms:

I have made my client aware that, under law, the Tribunal cannot set aside the decision of the Department of Home Affairs to reject his subclass 457 application, given the Tribunal’s decision not to set aside the associated nomination.

Therefore my client has no further comment to make, in regard to the Tribunal’s correspondence.

8    On 29 January 2021, the Tribunal affirmed the decision to refuse to grant the appellants’ visas (on the ground that clause 457.223(4)(a) of Schedule 2 was not satisfied in relation to the first appellant, with consequential impacts on the fate of the second appellant’s application).

9    The appellants then applied, unsuccessfully, to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision.

The Primary Judge’s Decision

10    The grounds of review relied upon by the appellants before the primary judge were expressed as follows:

1.    The Tribunal refused the nomination made by Bass Elhashem even though he argued that the nomination is genuine. The Tribunal now affirmed the decision not to grant me temporary business entry by refusing the visa application.

2.    The Tribunal decision is wrong and even though my sponsor’s nomination was refused I hope that the Federal Circuit Court can quash the decision of the Tribunal because the relationship and nomination is genuine contrary to previous refusal of nomination.

3.    My sponsor wishes to appeal the decision of the Tribunal regarding my nomination refusal therefore if the nomination is approved by the Court then this application will be also remitted to the Tribunal to be considered according to law.

11    The primary judge correctly construed those grounds as raising an argument that VB Built Pty Ltd’s application for a nomination should have been approved, with the result that the basis upon which the appellants’ applications had been refused was in error. Her Honour dealt with that argument as follows (at [13]-[18]):

Essentially, the grounds took issue with the fact that the [appellants’] application for 457 visas was refused, in circumstances where they say that the associated nomination was genuine.

When the application to this Court was filed in March 2021, the [appellants] indicated that the Proposed Employer wished to seek review of the Tribunal’s decision on the nomination review.

The fundamental difficulty for the [appellants] is that the Proposed Employer does not appear to have done so. The nomination review decision is not the decision under review by the Court. The [appellants] have no standing to challenge the nomination review decision: see s 486C(2)(a) of the Migration Act 1958 (Cth) and Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 95 at [40].

Even if the [appellants] had standing to seek review of the nomination review decision, the matters they have raised appear directed towards revisiting the merits of the Tribunal’s decision. This Court has no power to review the factual merits of the Tribunal’s decision, or to set it aside based upon disagreement alone: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [31]. For completeness, I note that this Court also has no power to “approve” a nomination, as distinct from adjudicating an application for judicial review of the Tribunal’s decision.

In circumstances where the nomination had been refused, and that decision had been affirmed, the [first appellant] was unable to meet cl 457.223(4)(a) of Schedule 2 to the Regulations. This was an objective criterion for the grant of the visas.

I therefore accept the Minister’s submission that the Tribunal correctly applied the law in this case and reached a finding that was open to it in the circumstances.

12    The primary judge also dealt with a submission made by the appellants that was not within their written grounds of review, and which concerned the circumstances in which the Tribunal had been informed that the appellants had “no further comment to make” following the rejection of VB Built Pty Ltd’s application for review. Her Honour said (at [19]):

At the hearing, the [first appellant] additionally submitted that he considered that his representative before the Tribunal had been negligent. He submitted that the representative’s email to the Tribunal saying that he had no further comment to make was incorrect and that he had, in fact, wished to make further comment. As I explained at the hearing, however, there is authority to the effect that negligence on the part of a representative, without more, is incapable of providing this Court with a basis for setting aside the Tribunal’s decision: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501 at [30] and [33].

The Appeal

13    The appellants’ notice of appeal was in the following terms:

1.    Her Honour Judge Laing dismissed my case on 14 February 2023.

2.    I have received an Order dated 14 February 2023.

3.    Her Honour has not published the judgement yet and I do believe that even though she was sympathetic to me and unable to find a jurisdictional error I do believe that my sponsor offered the sponsorship and nomination and Her Honour as well as the Tribunal failed to consider the offer of the nomination which at the time of Tribunal’s decision was not available but potentially the Tribunal and Her Honour deprived me of natural justice by not allowing to submit another nomination.

14    The substance of that complaint appears to be that the appellants were denied procedural fairness (both by the Tribunal and the primary judge) by not being allowed to submit another nomination in order to satisfy the criterion in clause 457.223(4)(a) of Schedule 2.

15    There are several difficulties in relying on that argument as a ground of appeal.

16    Insofar as it was suggested that the primary judge denied the appellants procedural fairness, there is nothing in the record that would suggest that the appellants gave any indication that a different nomination existed, let alone that they might wish to rely on it in some way. There was thus no issue raised in relation to which the Court might even arguably have been required to give the appellants an opportunity to be heard (or take some other step). Moreover, I can see no basis upon which it could be argued that the primary judge, hearing an application for judicial review of the Tribunal’s decision, was required to offer the appellants an opportunity to submit another nomination. Such a nomination could not have been relevant to the question of the existence of jurisdictional error on the part of the Tribunal.

17    Insofar as the complaint was concerned with the conduct of the Tribunal, the first difficulty confronting the appellants was that no issue of that kind had been raised before the primary judge. It follows that, if the appellants are to raise it on appeal before this Court for the first time, leave is required: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46]. The Minister submitted that leave should not be granted on the basis that the argument lacked merit, and that no explanation had been offered for the failure to raise it before the primary judge. The approach to the assessment of merit in this context was recently summarised in EUD24 v Minister for Immigration and Citizenship (2025) 311 FCR 155; [2025] FCAFC 128 at [7]-[9] (Cheeseman and Owens JJ): briefly, the Court should consider whether the proposed ground of appeal, assessed at an impressionistic level, has a reasonable prospect of success.

18    I am not persuaded that the argument has sufficient merit to warrant a grant of leave.

19    There is nothing in the record to suggest that there existed at any relevant time any information that there was some new or alternative nomination upon which the appellants might wish to rely. The Tribunal clearly identified to the appellants that it was considering their application on the basis that the relevant nomination was that for which approval had been sought by VB Built Pty Ltd. I do not think that it is sufficiently arguable that, in those circumstances, the Tribunal had an obligation to raise with the appellants whether some other nomination existed or might possibly be obtained.

20    Even if that proposition was arguable, then I agree that no explanation has been offered for why the point was not taken before the primary judge.

21    It follows that I do not grant leave to raise the new argument foreshadowed by the appellants’ notice of appeal.

22    In their written submissions, however, the appellants put their case differently (and, in broad terms, consistently with the case that had been advanced before the primary judge). The first appellant also appeared at the hearing of the appeal, and made submissions on behalf of both himself and the second appellant. Ultimately, the first appellant indicated that he did not wish to supplement, in substance, the arguments that he had made in writing.

23    The first argument put in writing by the appellants was that the primary judge should have found that the “Tribunal misunderstood the scope of its jurisdiction in treating the absence of an approved nomination as determinative”. I understood that to be an argument that the Tribunal had made an error of law in finding that clause 457.223(4)(a) of Schedule 2 was a mandatory criterion, and should have found that it was possible to grant a Subclass 457 visa even in circumstances where that criterion was not satisfied.

24    I do not accept that argument. Clause 457.2 of Schedule 2 contains the “primary criteria [that] must be satisfied” by the primary applicant. Clause 457.22 is headed “Criteria to be satisfied at time of decision”, and clause 457.223(4) was the criterion applicable to the particular pathway to a visa upon which the first appellant relied. The Tribunal did not have any discretion to grant a Subclass 457 visa if that criterion was not satisfied. It follows that the primary judge did not err in failing to find otherwise.

25    The second argument put in writing by the appellants was expressed over several paragraphs as follows:

The Tribunal may have constructively failed to exercise jurisdiction by not considering whether any legal error infected the nomination refusal.

The Primary Judge did not adequately examine whether the Tribunal misapprehended the interaction between the nomination review and visa review process.

The Primary Judge erred in concluding that the appellant lacked standing to challenge the nomination review decision.

…

The Judge as well as the Tribunal failed to consider and analyse whether the nomination decision may have been affected by jurisdictional error.

26    I understood that to be an argument broadly to the effect that the Tribunal decision rejecting VB Built Pty Ltd’s application for approval of the nomination was invalid, and that the Tribunal ought to have considered the appellants’ contentions to that effect, as should the primary judge, whether directly or as a collateral challenge to the validity of the decision of the Tribunal refusing to grant the appellants a Subclass 457 visa.

27    Insofar as the contention concerns the Tribunal, the point was not argued before the primary judge. Leave is thus required, and I am not satisfied that it should be granted. In determining the appellants’ application for review of the delegate’s decision to refuse their application for a Subclass 457 visa, it was no part of the Tribunal’s role (and nor did it have the power) to review the legality (or merits) of the Tribunal’s decision concerning VB Built Pty Ltd’s application for approval of its nomination.

28    Insofar as the contention concerns the primary judge, her Honour was correct to find that, by reason of section 486C(2)(a) of the Migration Act 1958 (Cth), the validity of the Tribunal’s decision in relation to VB Built Pty Ltd’s application could not be challenged by the appellants in judicial review proceedings in respect of their applications for Subclass 457 visas: see Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 299 FCR 464; [2023] FCAFC 123 at [73]-[128] (O’Sullivan J) and [205] (Raper J). The appellants lacked standing, and could not make a collateral challenge.

29    It follows, for reasons that I have already given, that the primary judge was correct to find that a failure to satisfy the criterion set out in clause 457.223(4)(a) of Schedule 2 was fatal to the appellants’ case.

30    The third argument was that the primary judge erred in failing to find that “procedural fairness was denied”. To the extent that that argument overlaps with the ground expressed in the notice of appeal, I have rejected it for the reasons given above. In any event, there is nothing in the material before me that would suggest any failure by the Tribunal to afford procedural fairness; the appellants were given an appropriate opportunity to appear and make submissions, to give evidence, and to respond to adverse information.

31    The fourth argument was expressed as follows:

The tribunal relied upon correspondence from my representative stating (no further comment). I later asserted that this did not reflect my position therefore the Tribunal may have denied me a meaningful opportunity to be heard.

The Primary Judge erred in holding that negligence of my representative could not amount to jurisdictional error.

32    I do not consider that the primary judge so erred.

33    Here there was no evidence beyond the submissions of the first appellant before the primary judge relevant to this ground. The first appellant did swear an affidavit in those proceedings, but it did not address in any way the circumstances in which his representative’s email to the Tribunal came to be sent.

34    There was no transcript available to me of the terms in which the submission was put to the primary judge, but her Honour recorded it in her judgment as follows (at [19]):

At the hearing, the [first appellant] additionally submitted that he considered that his representative before the Tribunal had been negligent. He submitted that the representative’s email to the Tribunal saying that he had no further comment to make was incorrect and that he had, in fact, wished to make further comment.

35    The submission addressed to her Honour thus appears to have been put no higher than that the agent had been negligent. The circumstances insofar as they are revealed do not suggest that fraud rather than negligence is necessarily the more likely explanation. In circumstances where the submission was entirely unsupported by evidence that it was within the power of the first appellant to adduce, I do not think that the primary judge erred at all in dealing with the appellants’ case on the basis that the alleged conduct of the appellants’ representative was merely negligent.

36    That is relevant because, as the Full Court observed in SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73; [2014] FCAFC 40 at [52] (Perram, Robertson and Griffiths JJ):

It is well settled that mere negligence, inadvertence or incompetence on the part of an agent representing a visa applicant will not constitute fraud so as to warrant judicial intervention.

37    One frequently cited authority for that proposition (indeed, the one cited by the primary judge) is Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443; [2008] FCAFC 17 at [33], where the Full Court (Tamberlin, Finn and Dowsett JJ) said:

[A]n agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the tribunal in relation to the due discharge of its Div 4 of Pt 7 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that [affects] the tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the tribunal.

38    In those circumstances, I do not consider that her Honour erred in finding that the asserted negligence of the appellants’ representative provided no basis for setting aside the Tribunal’s decision.

39    Next, the appellants argued that the primary judge erred in accepting the Minister’s submission that remittal would be futile. In circumstances where the primary judge was not satisfied that there was jurisdictional error, this conclusion was merely an additional reason why the appellants’ application would fail. In circumstances where I am also of the view that no jurisdictional error has been established, it is not necessary that I consider, if such error had been demonstrated, what the appropriate consequences should have been. The answer, it seems to me, may well have depended on the nature of any particular error that might have been made out.

40    Finally, the appellants argued that the primary judge “failed to fully examine whether legislative changes could affect the outcome”. No attempt was made, however, to identify what legislative changes could possibly have been relevant. I have been unable to think of any myself. It follows that I do not accept that the primary judge erred in this way.

Conclusion

41    For the above reasons, the appeal should be dismissed with costs.

Associate:

Dated:    24 April 2026