Federal Court of Australia

Zhang v Minister for Immigration and Citizenship [2026] FCA 783

ORDERS

THE COURT ORDERS THAT:

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

2.    The name of the second respondent be amended to Administrative Review Tribunal.

3.    The application for an extension of time be granted but leave to appeal be dismissed.

4.    The applicants pay the costs of the first respondent of and incidental to their application fixed in an amount of $5,000.

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

REASONS FOR JUDGMENT

BEACH J:

1    The applicants seek an extension of time and leave to appeal from the orders of the primary judge who refused to grant an extension of time concerning the applicants’ application for review of a registrar’s decision pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to summarily dismiss the applicants’ application for judicial review pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) because the application for judicial review had no reasonable prospects of success.

2    The applicants had sought judicial review of a decision of the then Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister to refuse the applicants an Employer Nomination Scheme (Subclass 186) visa on the basis that the first applicant did not satisfy cl 186.233 of Schedule 2 to the Migration Regulations 1994 (Cth).

3    A decision of the Federal Circuit and Family Court of Australia pursuant to r 13.13(a) of the FCFCOA rules is interlocutory in nature. So too is the primary judge’s decision to refuse an extension of time. Accordingly, leave to appeal from this Court is necessary. Further, any application for leave to appeal was required to be made within 14 days from the date of the primary judge’s orders, but the application was filed 16 days outside the time limit prescribed. The applicants therefore also require an extension of time to seek leave to appeal.

4    For the following reasons I will grant the application for an extension of time but refuse leave to appeal. This determination is substantive rather than a default judgment based upon the failure of the applicants to appear.

Background

5    On 15 January 2017, the first applicant, a citizen of South Africa, applied for an Employer Nomination (Subclass 186) visa in the Direct Entry stream. The first applicant was sponsored by Lyrebird Australia Pty Ltd in the occupation of “Importer or Exporter”. The second and third applicants applied for visas as members of the first applicant’s family unit.

6    On 22 August 2017, the sponsor’s nomination application was refused by a delegate of the Minister. On 7 September 2017, the applicants were invited to comment on information that the sponsor’s nomination application had been refused.

7    On 11 September 2017, the applicants’ authorised representatives wrote to the relevant department and requested that it defer its decision as the sponsor had submitted an application for review with the Tribunal on 8 September 2017.

8    On 2 November 2017, the department emailed the applicants’ representatives and advised that the department was not able to defer its decision on the visa application.

9    On 2 November 2017, the delegate refused to grant the first applicant his visa. The delegate found that the first applicant did not satisfy cl 186.233 of Schedule 2 to the Regulations, which required him to be the subject of an approved nomination, noting the sponsor’s nomination application had previously been refused. The delegate further found that as the second applicant was not a member of the family unit of a person who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa, she did not satisfy cl 186.311 of the Regulations. The third applicant was also found not to have satisfied the requirements for a subclass 186 visa.

10    On 13 November 2017, the applicants applied to the Tribunal for review of the delegate’s decision.

11    On 11 December 2019, the Tribunal affirmed the delegate’s decision to refuse the sponsor’s nomination application.

12    On 12 March 2020, the Tribunal invited the applicants to attend a hearing, by telephone, scheduled for 6 April 2020. The first applicant attended the scheduled hearing, gave evidence and presented arguments.

13    On 9 April 2020, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa(s).

14    The Tribunal found that the issue to be determined on review was whether the first applicant had an approved nominating sponsor and position in which to be engaged in employment. The Tribunal found that the first applicant had given evidence at the hearing that he was aware there was no current nomination and that the sponsor’s nomination application had been refused by the delegate. The Tribunal found that the applicants had not provided evidence demonstrating that the first applicant was the subject of an approved nomination as required by cl 186.233. The Tribunal concluded that the first applicant did not meet cl 186.233 and accordingly the second applicant did not meet cl 186.311. Further, given that the first and second applicants did not meet the criteria for the grant of the visa, the Tribunal held that the third applicant did not meet cl 186.311.

The proceedings in the court below

15    By application filed in the court below, the applicants sought judicial review of the Tribunal’s decision. The application advanced two grounds of review (particulars omitted):

1.    The Tribunal made a jurisdictional error by misconstruing cl 186.233(3) of Sch 2 to the Migration Regulations 1994 (Cth).

2.    In the alternative to ground 1, the Tribunal made a jurisdictional error by failing to inquire into a particular fact.

16    On 5 July 2024, the Minister filed an amended response seeking that the application be listed for a summary dismissal hearing.

17    On 26 July 2024, the parties appeared at a hearing of the Minister’s application for summary dismissal before a registrar, where the judicial review application was summarily dismissed because it had no reasonable prospects of success.

18    On 15 August 2024, the applicants filed an application to review the registrar’s decision dated 26 July 2024. The application raised six grounds of review. The application was filed 13 days outside the prescribed time of 7 days. There was no express application for an extension of time, but the primary judge amended the application.

19    On 21 October 2024, the primary judge dismissed the application for an extension of time for review of the registrar’s decision dated 26 July 2024.

20    The primary judge correctly identified that the applicants’ application for review of the registrar’s decision was filed out of time and that the applicants required an extension of time. The primary judge further considered the relevant factors in determining whether to extend time, and was not satisfied that it was appropriate to grant the extension of time application to seek review of the registrar’s decision as it was not reasonably arguable that the applicants would be able to resist the Minister’s dismissal application.

21    The primary judge held that cl 186.233(3) was not satisfied at the time of the Tribunal’s decision as the sponsor’s nomination had not been approved. The primary judge further found that there was no evidence capable of establishing that the nomination could be approved in the future.

22    The primary judge ultimately held that if the matter were remitted to the Tribunal, it would again need to consider whether the applicants satisfied the requirements of cl 186.233. As the relevant nomination was refused, which decision remains undisturbed, the applicants did not and could not meet the requirements of cl 186.233. Therefore, any error on the part of the Tribunal could not have had an impact on the decision the Tribunal was required to make.

23    The primary judge held that the substantive application for judicial review had no reasonable prospects of success and refused the application for an extension of time.

Application for an extension of time and leave to appeal

24    There is little doubt that the applicants require leave to appeal from the interlocutory decision refusing an extension of time. Further, the applicants were required to file an application for leave to appeal from the primary judge’s orders within 14 days of the date on which the orders were made. The application therefore should have been filed by no later than 4 November 2024. The applicants therefore require an extension of time of 16 days. Now given the shortness of the delay and without lingering further on the topic, I will grant the applicants an extension of time. Let me turn to the leave to appeal question.

25    In order for the Court to grant leave to appeal, the applicants must satisfy the Court that the judgment of the primary judge is attended with sufficient doubt to warrant it being reconsidered by this Court and that substantial injustice would result if leave were refused supposing the decision to be wrong.

26    In my view the application for leave to appeal ought to be refused because the proposed substantive appeal is without merit. Let me address the proposed grounds of appeal.

27    Now the Minister complains that the grounds relied on were not raised before the primary judge and the applicants therefore require leave to agitate them. The Minister opposes that leave but I will grant leave, particularly as there is no relevant prejudice to the Minister and it is convenient for me to do so.

28    Grounds one and eight are directed at the decision of the registrar in the court below in summarily dismissing the applicants’ application for review. But the task of this Court is to review the decision of the primary judge. As such, these grounds do not allege any error in the decision of the primary judge or the Tribunal.

29    Ground two alleges that the Tribunal failed to consider whether the applicants’ procedural circumstances, specifically in relation to the difficulties encountered in securing a nomination approval, amounted to a jurisdictional error. Ground four alleges that the Tribunal committed a jurisdictional error by restricting the applicants’ ability to present evidence supporting their eligibility, thus failing to afford the applicants procedural fairness. Ground seven alleges that the Tribunal failed to conduct a fair and proper hearing under s 360 of the Migration Act 1958 (Cth).

30    But the Tribunal complied with its procedural fairness obligations under Part 5 of Division 5 of the Act. By invitations on 12 March 2020 and 25 March 2020, the applicants were invited to attend a hearing before the Tribunal, in compliance with ss 360 and 360A of the Act, which the first applicant attended, and at which he gave evidence and presented arguments. The applicants were on notice from the delegate’s decision that the determinative issue on review would be whether the first applicant was the subject of an approved nomination and satisfied cl 186.233. No breach of s 360 is apparent.

31    Further, there was no “information” that was required to be put to the applicants in accordance with s 359A of the Act. The Tribunal’s decision was based on the applicants’ written evidence to the department, information contained in the delegate’s decision record which the applicants provided to the Tribunal and the applicants’ oral evidence to the Tribunal. All this material fell within the exceptions to information in s 359A(4)(ba) and (b) of the Act. No breach of s 359A has occurred.

32    The Tribunal correctly identified the determinative issue, being whether the first applicant was the subject of an approved nomination and satisfied cl 186.233. Where the Tribunal determined that the applicants did not meet a mandatory criteria for the grant of the visa, it made the only decision open to it on the material before it.

33    Ground three alleges that the Tribunal incorrectly interpreted clause 186.233 of the Regulations, focusing narrowly on the absence of an approved nomination rather than evaluating whether the nomination denial was jurisdictionally valid. Ground five alleges that the Tribunal’s dismissal on grounds of futility was unreasonable, given that there was no definitive evidence indicating that the applicant could not secure a valid nomination. There is nothing to suggest that the Tribunal wrongly treated cl 186.233(3) as being confined to approval by the Minister. Rather, the Tribunal had before it the applicant’s concession that he was not the subject of an approved nomination. The Tribunal accordingly found that the applicant did not meet cl 186.233. The Tribunal had no discretion to waive a mandatory criteria for the grant of the visa.

34    To the extent that these grounds seek to challenge the Tribunal’s nomination decision it is misconceived as the applicants had no standing to do so in the judicial review proceedings.

35    In any event the Tribunal considered the evidence before it, assessed that evidence with reference to the relevant statutory framework, and made findings that were open to it based on rational reasons that were arrived at on consideration of matters that were logically probative. It could not be said that no other rational or logical decision maker could not have drawn the same conclusion.

36    Ground six alleges that the Tribunal dismissed the application on procedural grounds due to a filing delay, without accounting for the applicants’ genuine circumstances which led to the delay. On a beneficial reading of this ground, it appears to be directed towards the decision of the primary judge in refusing the application for an extension of time to review the registrar’s decision. Contrary to the applicants’ allegations, the primary judge dismissed the application on the basis that it was not appropriate to grant the extension of time to seek review of the registrar’s decision as it was not reasonably arguable that the applicants would be able to resist the Minister’s dismissal application in circumstances where the first applicant was not the subject of an approved nomination and so could not satisfy cl 186.233.

37    Finally, in circumstances where the applicant has still not provided any evidence that he was or is the subject of an approved nomination, even if there was an error in the Tribunal’s decision, which is not apparent, it would be immaterial as it could not have made any difference to the ultimate outcome of the review. The applicant was not subject to an approved nomination and did not meet the requirements for the grant of the visa. Further, where the applicant cannot meet the nomination requirements with any different nomination not declared in the visa application, it would be futile to remit the matter.

38    The primary judge’s decision to refuse the extension of time sought is not attended by any sufficient doubt. Nor is there any jurisdictional error apparent in the Tribunal’s decision. Further, none of the proposed grounds of appeal have any reasonable prospects of success.

Conclusion

39    For the foregoing reasons, the application for an extension of time will be granted but leave to appeal will be refused with costs.

Associate:

Dated:    19 June 2026