Federal Court of Australia

Hasan v Minister for Immigration and Citizenship [2026] FCA 1105

ORDERS

THE COURT ORDERS THAT:

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

2.    Leave to rely upon a ground that was not advanced before the primary judge be refused.

3.    The appeal be dismissed.

4.    The first appellant pay the first respondent’s costs, fixed in the sum of $5,500.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from a decision of a judge of Division 2 of the Federal Circuit and Family Court of Australia, being a separate court: Hasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 326. On 7 March 2024, the primary judge dismissed an application for review of a decision of the then Administrative Appeals Tribunal, the second respondent, in relation to the refusal of the grant of temporary skill shortage visas to the appellants by a delegate of the first respondent. The first respondent now has the title of Minister for Immigration and Citizenship. The first appellant was the primary visa applicant. The second appellant is the wife of the first appellant.

2    On 23 April 2020, the Tribunal made its decision in relation to the merits review application brought by the appellants from the decision of a delegate of the Minister to refuse to grant visas to the appellants. The Tribunal found that it did not have jurisdiction to review the decision to refuse the first appellant’s application for a visa because of the absence of an approved nomination by an approved sponsor, and no pending review for any nomination decision. Accordingly, the Tribunal affirmed the decision of the delegate to refuse the grant of a corresponding visa to the second appellant. The second appellant had only claimed to be eligible for the visa sought upon the basis of being a member of the first appellant’s family unit. If he was not able to obtain the visa sought, nor was she.

3    I have read and considered the decisions of the delegate, the Tribunal, and the primary judge. I am satisfied that that they have been accurately and sufficiently summarised in the Minister’s written submissions. In all the circumstances, it is efficient and appropriate to rely upon those written submissions to describe what has taken place, as follows (at [4]-[18], omitting appeal book references, pinpoint references to the reasons of the Tribunal, and headings):

On 6 July 2018, the appellants applied for the visa on the basis that the first appellant had been nominated for the position of Cook by his sponsor, Grand Total Service Pty Ltd.

On 19 February 2019, a delegate refused to grant the appellants the visa. The delegate was not satisfied that the first appellant met cl 482.212 of Schedule 2 of the Migration Regulations 1994 (Cth), which required him to be the subject of an approved nomination. The delegate was not satisfied that the second appellant met cl 482.312 of the Regulations, which required her to be a member of a family unit of a holder of a Temporary Work (Skilled) (subclass 457) visa or a Temporary Skill Shortage (subclass 482) visa.

On 10 March 2019, the appellants applied for review of the delegate’s decision in the Tribunal.

On 29 October 2019, the Tribunal wrote to the appellants’ representative inviting them to comment on the validity of the application for review, on the basis that the first appellant was not the subject of an approved nomination, and there was no pending review for any nomination decision. The Tribunal also invited comment on the second appellant’s apparent inability to satisfy the cl 482.312 of the Regulations. The appellant’s representative responded to the invitations.

On 1 April 2020, the Tribunal invited the second appellant to attend a hearing.

On 17 April 2020, the second appellant attended a hearing before the Tribunal. On the same day, the appellants provided further submissions.

On 23 April 2020, the Tribunal affirmed the delegate’s decision in respect of the second appellant and found that it did not have jurisdiction in respect of the decision concerning the first appellant.

The Tribunal had regard to the appellants’ submissions regarding the delegate’s notification letter. It concluded that the notification was valid and the appeal rights were clearly conveyed to both appellants.

The Tribunal found that, at the time of lodging the review application on 10 March 2019, the first appellant was not the subject of an approved nomination, and there was no pending review application before the Tribunal in relation to the nomination. The Tribunal found it did not have jurisdiction to review the decision in respect of the first appellant.

The Tribunal further concluded that the second appellant did not meet the primary criteria of the visa in her own right, and affirmed the decision in respect of the second appellant.

On 26 May 2020, the appellants commenced proceedings in the Federal Circuit and Family Court. The application contained three grounds of review. Two grounds of review were pressed by the appellants as set out at [12]-[14] of the reasons for judgment of the primary judge.

Ground 1 asserted that the Tribunal denied the first appellant procedural fairness in not inviting him to a hearing. Ground 3 contended that the Tribunal was legally unreasonable in doing so.

Grounds 1 and 3 were considered by the primary judge at J [13]-[26]. The primary judge concluded that the Tribunal was under no obligation to invite the first appellant to attend the hearing in circumstances where the Tribunal did not have jurisdiction under s 338(2)(d)(i) of the Migration Act 1958 (Cth) to review the decision. Having found against the appellants for ground 1, the primary judge concluded that ground 3 was not established.

The primary judge also concluded that no jurisdictional error arose in inviting the second appellant to a hearing and in the Tribunal’s finding that the second appellant could not be granted the visa in her own right: J [27].

On 11 April 2024, the application was dismissed with costs.

4    The sole ground of appeal contained in the notice of appeal, described below, cannot possibly succeed, even if leave to rely upon that ground, which was not advanced before the primary judge, was granted. While such leave must be refused because the ground is obviously devoid of merit, it is convenient to proceed as though such leave had been granted, so that the only case advanced can be understood and considered at its highest, including to inform the determination as to the question of leave.

5    The ground of appeal contends that the primary judge erred by failing to hold that the Tribunal made a jurisdictional error by considering a criterion for the grant of the visa sought which had not been considered by the delegate. When read with the particulars to that ground, it clearly refers to the Tribunal’s decision in relation to the first appellant.

6    The appeal ground is misconceived, because the Tribunal did not consider any criterion for the grant of the visa sought by the first appellant. That was because the Tribunal found that it had no jurisdiction to review the decision not to grant the appellant a visa. The Tribunal therefore had no jurisdiction to embark upon any consideration of any of the visa criteria. The appellants do not challenge the conclusion of the primary judge upholding the Tribunal’s conclusion that it did not have jurisdiction. Nor do they challenge the Tribunal’s separate decision to uphold the delegate’s decision to refuse the grant of a visa to the second appellant. That outcome too, was inevitable, given the primary judge’s prior conclusion in relation to the Tribunal’s jurisdiction.

7    It follows that there was no alternative but to deny the appellants leave to rely upon the ground of appeal not advanced before the primary judge, and accordingly, dismiss the appeal with costs.

8    As to the quantum of costs, item 15.2 in Schedule 3 to the Federal Court Rules 2011 (Cth) provides that a short form amount of $8,907, including costs and disbursements, may be claimed if an appeal from an order made by the Federal Circuit and Family Court of Australia (Division 2) in respect of a migration decision under the Migration Act 1958 (Cth) is discontinued or dismissed after a hearing: r 40.43. The Minister seeks a lesser amount of $5,500. In all the circumstances, I am satisfied that it is appropriate to fix the costs to be paid in that lesser sum. While the Minister sought that order against both appellants, I am satisfied that it is appropriate to make that order against only the active appellant, being the first appellant.

Associate:

Dated:    10 August 2026