Federal Court of Australia

Virk v Minister for Immigration and Multicultural Affairs [2026] FCA 1146

ORDERS

THE COURT ORDERS THAT:

1.    The Second Appellant be removed as a party to the proceeding.

2.    The appeal be dismissed.

3.    The First Appellant pay the First Respondent’s costs, 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

BUTTON J:

Background

1    The First Appellant (Ms Virk) is a citizen of India. On 4 May 2016, Ms Virk applied for a Temporary Business Entry (Class UC) (Subclass 457) visa, with her (now deceased) husband and son being secondary applicants. The employer sponsor was “Traditional Bite Pty Ltd” (sponsor). Ms Virk is the widow of the Second Appellant, who passed away shortly after this appeal was filed, and the mother of the Third Appellant. The Third Appellant is now an adult and, having obtained a different visa in his own right, discontinued the appeal insofar as it was conducted on his behalf. A death certificate was provided to the Court in respect of the Second Appellant. Orders will be made removing him as a party. Although, by the time of the hearing of the appeal, the only remaining Appellant is Ms Virk, I will refer to the “Appellants” in relation to the course of events before the then Administrative Appeals Tribunal (Tribunal) and the court below, reflecting the fact that Ms Virk’s husband and son were then still parties to the application to the Tribunal, and the proceedings in the Federal Circuit and Family Court of Australia (Div 2) (FCFCoA).

2    A delegate of the First Respondent (the Minister) refused the visa application on 20 December 2016. The visa application was refused on the basis that the sponsor did not have an approved nomination for Ms Virk, and she therefore did not satisfy cl 457.223(4) of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations) (as in force before 18 March 2018). Pursuant to cl 457.223(4)(a) of Sch 2, Ms Virk would only have been eligible for the visa for which she applied if she was the subject of an approved nomination by the sponsor. However, both the sponsor’s initial, and subsequent, nomination applications had been refused. The sponsor’s second nomination application had been refused by the Minister’s delegate on 20 December 2016. The sponsor applied to the Tribunal for a merits review of that refusal.

3    At the same time as the sponsor applied to the Tribunal for merits review of the nomination refusal, the Appellants applied to the Tribunal for review of the delegate’s decision to refuse the visa application. That was on 9 January 2017. It was not until 7 January 2019 that the Tribunal wrote to the Appellants (by their registered migration agent) pursuant to s 359A of the Migration Act 1958 (Cth) (the Act). The delay was occasioned by the time taken for the Tribunal to determine the sponsor’s merits review application, which was only finalised on 2 January 2019. The sponsor did not seek judicial review of the Tribunal’s decision affirming the delegate’s decision to refuse the nomination application.

4    The Appellants did not provide any response to the Tribunal’s s 359A letter, and the Tribunal proceeded to determine the application by affirming the delegate’s decision. The Tribunal issued written reasons (T) dated 29 January 2019.

5    The Appellants lodged an application for judicial review in the FCFCoA on 20 February 2019. Ms Virk appeared personally and also represented her husband and son. The primary judge dismissed the application for judicial review on 8 October 2024: Virk v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 990 (J).

6    By a Notice of Appeal dated 24 October 2024, the Appellants appealed the primary judge’s judgment to this Court. The proceeding was allocated to my docket in late May 2026. The Minister put on written submissions filed on 15 July 2026. Ms Virk did not put on any written submissions in chief, in accordance with the timetable set by orders of the Court made on 7 November 2024. However, she did file some written submissions, which she characterised as “reply” submissions, a week before the hearing. The Minister did not oppose these submissions being received and considered (even though they went well beyond replying to the Minister’s submissions). Ms Virk appeared on her own behalf at the hearing, and made oral submissions.

7    The application in this Court states the following grounds of appeal:

1.    The Court and Tribunal did not consider my (first appellant’s) study and work history in Australia.

I arrived in Australia on 24 April 2008 on a student visa. From them, until mid-2015 I completed Certificate III in Cookery, Diploma of Hospitality Management, Diploma of Management, Certificate IV in Business, Diploma of Business and Associate Diploma of Business.

After the studies I started working as a Restaurant Manager in Cobram with my sponsor employer. I worked with that business from about July 2015 to about October 2018, before moving to Melbourne to join my husband.

2.     The Court and Tribunal did not consider that I worked in my nominated occupation with my sponsor for over 3 years.

3.     The Court and Tribunal did not consider the detriment of delay of two (2) years (from January 2017 to January 2019) by the Tribunal in deciding the sponsor’s nomination application. During this time, because of my medical condition (I had surgeries for Kidney and Fibroids) and our family’s financial condition I had to move to Melbourne in about October 2018. I was living and working in Cobram, but my husband could not get any job in Cobram resulting in our financial hardship. For this reason, my husband had to move to Melbourne later in 2015.

During this time of delay, the regulations also changed, which were detrimental to my case, my career and my visa prospects.

If the Tribunal had acted promptly to determine the sponsor’s nomination application, the application would have succeeded, and my visa would have been granted.

4.    The refusal of the sponsor’s nomination application was beyond my control. The nomination application was genuine of which my job was the proof. The court did not consider this adequately.

5.     The Court did not consider my application with any compassion and did not consider our compelling circumstances.

One compelling ground was the separation of our family, first from late 2015 to until about October 2018 when my husband had to move form Cobram to Melbourne because of lack of work and financial hardship and I had to stay back with our son to work for my sponsor; and secondly when the family travelled to India in early 2020, and after I returned to Australia with my son, my husband got stuck in India due to Covid travel restrictions and then his visa expired, and to date he has not been able to return to Australia. Further our son, who is over 19 years old, has been here since he was only 4 years old. He will not be able to live in India.

6.     Lastly, I was not afforded procedural fairness in allowing me time to find another sponsor and lodge another visa, especially when the Tribunal took considerable time in determining the sponsor’s nomination application.

7.     The court did not consider my unique circumstances and challenges to ensure that I have a just and equitable outcome of my application, permitting me to live in Australia to pursue success in my career and contribute positively to the community.

8    To some extent, the matters raised by these grounds depart from the contentions raised before the primary judge concerning the basis upon which the Tribunal was said to have engaged in jurisdictional error. However, there is substantial overlap. The primary judge seems to have permitted some departure from the grounds of judicial review formally raised below by accepting and addressing matters raised in written post-hearing submissions of the Appellants, and the Minister did not object to the shifting ground. In these circumstances, it would be very inefficient to attempt to unpick the extent to which Ms Virk’s grounds of appeal, as set out in her Notice of Appeal, departs from the expanded field permitted in the FCFCoA in order to assess whether there should be a grant of leave to raise new grounds on appeal. Likewise, while the Minister submitted that Ms Virk’s grounds, as stated in her written submissions, had also somewhat shifted from the grounds stated in the Notice of Appeal, he did not object to the Court considering the points made in those submissions. The efficient course is to deal directly with the grounds raised in the Notice of Appeal and in Ms Virk’s submissions. The Minister agreed this was an appropriate way in which to proceed and I have proceeded on this basis.

Changes to the Regulations in March 2018

9    Before going further, it is necessary to touch on changes made to the Regulations, which changes are referred to in Ms Virk’s ground 3. Those changes, and the manner in which they affect Ms Virk, were explained as follows by the Minister (underlined emphasis added):

46.     On 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 which removed Subclass 457 from the class of skilled visas. As such, it is no longer possible for an employer to seek approval of a nomination to sponsor a prospective subclass 457 visa holder. It was a requirement for the grant of a Subclass 457 visa that the nomination of the occupation in relation to the first appellant had been approved under s 140GB of the Act, and that nomination had not ceased as provided for in reg 2.75: cl 457.223(4)(a).

47.     Clause 167 of Schedule 2 to the Amending Regulations repealed Part 457 of Schedule 2 to the Regulations, with effect from 18 March 2018. However, cl 178 of Schedule 2 to the Amending Regulations inserted a new Part 67 to Schedule 13 of the Regulations. New item 6702(2) of Schedule 13 to the Regulations relevantly provides that, despite the repeal of Part 457 of Schedule 2, those provisions still in force immediately before 18 March 2018 continue to apply in relation to an application for a visa made before that date. Accordingly, the Tribunal was correct to consider whether the first appellant satisfied cl.457.223(4)(a) of the Regulations, notwithstanding that the decision was made after the repeal of Part 457.

48.     If the matter were remitted to the Tribunal, the Tribunal would again have to consider whether the first appellant satisfies cl 457.223(4)(a) of the Regulations (in the form as at 17 March 2018). However, it is no longer possible for the first appellant to satisfy that criterion, because she is not the subject of a nomination approved under s 140GB of the Act, and could not be the subject of a nomination approved under s 140GB of the Act at any time in the future.

…

50.     It is no longer possible for any other entity to have a nomination approved in respect of the first appellant under s 140GB of the Act. The relevant criteria for the approval of a nomination for a Subclass 457 visa are set out in reg 2.72 of the Regulations, which applies (relevantly) only in relation to a person who nominates a proposed occupation in relation to a person who already holds a Subclass 457 visa: Salh at [39].

51.     Further, s 140GB(3) provides that the Regulations may establish a process for the Minister to approve a person’s nomination. The relevant process is contained in reg 2.73 of the Regulations, which applies (relevantly) only in relation to a person who nominates a proposed occupation in relation to a person who already holds a Subclass 457 visa: Salh at [41].

52.     The first appellant was never the subject of an approved nomination and in the absence of any later nomination approval and noting that no nomination applications for a Subclass 457 visa may now be lodged, the first appellant would never be able to be the subject of an approved nomination. Therefore, if the matter was remitted to the Tribunal, it would be bound to affirm the decision under review as the first appellant would be unable to satisfy cl 457.223(4)(a) of the Regulations.

10    In short, once the regulations changed in March 2018, no new employer-sponsored nomination for a subclass 457 visa could be made. As I will come to, this context is relevant to understanding grounds 3 and 6, as they were amplified by Ms Virk in her written and oral submissions.

The grounds of appeal

11    Grounds 1 and 2 raise matters concerning Ms Virk’s study and employment history. Those matters, while understandably important to Ms Virk’s perception of the justice of her case, are legally irrelevant. The issue for the Tribunal was whether or not Ms Virk met the criterion specified in cl 457.223(4)(a) of Sch 2 of the Regulations: ie, whether she did, or did not, have an approved nomination. As the primary judge correctly observed, “[t]he reasons for her not having an approved nomination were not relevant to the Tribunal’s decision” (J [48]). These grounds must be rejected.

12    Ground 4 contends that the refusal of the sponsor’s nomination application was beyond Ms Virk’s control, that the nomination was genuine, and that the primary judge “did not consider this adequately”. This ground fails for the same reason as grounds 1 and 2: specifically, why the sponsor’s nomination application failed, and whether or not the nomination was genuine, were not matters that were relevant to the Tribunal’s determination in respect of Ms Virk’s visa application, and so could not have founded any successful basis for judicial review of the Tribunal’s decision.

13    Grounds 5 and 7 raise matters concerning the personal circumstances of Ms Virk and her family, both in the past, and, in the case of her son, the fact that he has spent his formative years in Australia. Ground 5 contends that the court below did not consider her application “with any compassion” and did not consider the family’s “compelling circumstances”. Ground 7 contends that the court below did not consider Ms Virk’s “unique circumstances and challenges” to ensure that she can have a “just and equitable outcome”, permitting her to “live in Australia and pursue success”.

14    The matters raised by grounds 5 and 7 were not relevant to the primary judge’s task, which was to assess whether the Tribunal engaged in jurisdictional error. Clause 457.223(4)(a) of Sch 2 of the Regulations imposes a rigid qualifying criterion: Ms Virk had to have an approved nomination, but she did not. Whatever sympathy the circumstances of Ms Virk (and her family) may warrant is not legally relevant. Grounds 5 and 7 must be rejected.

15    That leaves grounds 3 and 6.

16    In her written and oral submissions, Ms Virk focused on these two grounds, and sought to explain her overall case by reference to them. Overall, Ms Virk accepted that, due to the sponsor’s nomination review application having failed, the Tribunal could not grant her the visa she sought. Her complaint is that the Tribunal erred in not exercising its own power under s 363(1)(b) of the Act to adjourn the review, and delay making a decision on her application. Ms Virk emphasised that the Tribunal’s decision dismissing the sponsor’s application for a review of the delegate’s refusal of the nomination application was made on 2 January 2019, and the Tribunal’s decision on her application was made very quickly thereafter, on 29 January 2019. She contends that the Tribunal should have waited a while (just how long was not suggested). When asked what use waiting a while would have been, given that she did not have an approved nomination, Ms Virk stated that if she had had more time, she could have potentially obtained another nomination, either from the same employer, or a different employer. This substantive contention largely coincides with ground 6. That ground raises a procedural fairness contention, stating that the Tribunal denied Ms Virk procedural fairness in not allowing her time to “find another sponsor and lodge another visa”.

17    Ms Virk accepted that, due to the change in the Regulations, it may be futile to send the matter back to the Tribunal, but she maintained that the Tribunal made a mistake in not allowing her extra time by adjourning the review application. The contention advanced in her written submissions, by reference to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [65]–[76] (Hayne, Kiefel and Bell JJ), is that the Tribunal was required to exercise its power to adjourn the review under s 363(1)(b) of the Act in a legally reasonable manner, and had failed in that obligation in 2019. Ms Virk says the reasons the Tribunal gave for not adjourning the review were inadequate to justify that decision when the sponsor’s nomination review decision had only been made 27 days earlier.

18    Additional submissions were made as to why the Tribunal deciding not to adjourn was legally unreasonable. Those arguments were:

(1)    The Tribunal referred to the Appellants having known the reasons for the delegate’s refusal of their visa since 2016 (T [13]), but that did not address the fact that the Tribunal’s decision on the sponsor’s nomination review application had remained pending until 2 January 2019. Ms Virk submitted that knowledge of the 2016 visa refusal was not equivalent to having an opportunity to “consider the 2019 nomination reasons and any available legal step concerning that decision”. As mentioned, when asked what steps she might have taken had there been an adjournment, Ms Virk’s submission was that she could have attempted to find another employer to support a nomination, or have sought a further nomination from the same employer.

(2)    The Tribunal stated that nothing prevented the Appellants from applying for a temporary visa after finding a new employer (T [14]), but Ms Virk submitted that this was not a reason why a “short adjournment” should not have been allowed. She submitted that the Tribunal had not identified any available visa, or the criteria for such a visa, and this speculative future process did not justify bringing the existing review to an immediate end.

(3)    The Tribunal stated that it had considered whether a response was likely to be forthcoming and whether the Appellants had had a fair opportunity to provide a response, and the significance of the information to the Appellants. Ms Virk submitted that the Tribunal failed to take into account that the recent nomination decision formed part of the circumstances relevant to the adjournment discretion.

19    The relevant chronology is as follows.

(1)    On 2 January 2019, the Tribunal affirmed the delegate’s decision not to approve the sponsor’s nomination.

(2)    On 7 January 2019, the Tribunal wrote to the Appellants via their registered migration agent, pursuant to s 359A of the Act. The Tribunal’s letter was in the following terms, which clearly stated the fundamental issue with the application, namely that Ms Virk did not have an approved nomination (underlined emphasis added):

Dear Mrs Virk, Mr Singh and Mr Virk

INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MRS ANIKA VIRK, MR VARINDER SINGH AND MR SEHASVIR SINGH VIRK

I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Temporary Business Entry (Class UC) visas.

In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

Please note, however, that we have not made up our mind about the information.

The particulars of the information are:

The first named review applicant was nominated by Traditional Bite Pty Ltd for a position of a Cafe or Restaurant Manager.

The nomination application made by Traditional Bite Pty Ltd was refused by the Department on 20 December 2016.

Traditional Bite Pty Ltd applied for review of this decision at the Tribunal on 9 January 2017.

On 2 January 2019 this Tribunal affirmed the decision not to approve nomination made by Traditional Bite Pty Ltd.

This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 457 visa. This is because one of the criteria contained within subclass 457, namely clause 457.223(4)(a) requires the visa applicant to demonstrate that at the time the Tribunal comes to deciding the application, the visa applicant must be the subject of an approved nomination by a standard business sponsor, in relation to an occupation specified for the purpose of the Migration Regulations. The relevant provisions are set out in Attachment 1.

If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that the first named applicant does not meet the criteria contained within clause 457.223(4)(a).

…

Your comments or response should be received at the tribunal by 21 January 2019. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

If you cannot provide your written comments or response by 21 January 2019, you may ask the tribunal for an extension of time in which to provide the comments or response. If you make such a request, it must be received by the tribunal before 21 January 2019 and you must state the reason why the extension of time is required.

The tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

If the tribunal does not receive your comments or response within the period allowed or as extended, the tribunal 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 the tribunal to give evidence and present arguments.

If you have any questions, please contact me on the number listed below, or telephone the tribunal's national enquiry line on 1300 361 969. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

Yours sincerely

(4)    The 14-day time frame specified in the letter was fixed by reg 4.17(4) of the Regulations (J [43]).

(5)    The Appellants did not respond to the Tribunal’s invitation, issued under s 359A of the Act, at all. They did not provide any information. Nor did they ask for an extension of time in which to respond, as the Tribunal’s letter invited them to do.

20    As Ms Virk accepts, the consequence was that pursuant to ss 359C(2) and 360(3) of the Act, the Appellants were not entitled to appear before the Tribunal, and the consequence of s 363A of the Act was that the Tribunal did not have the power to permit them to appear before the Tribunal: see Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 at [28]–[29] (Jacobson, Gilmour and Foster JJ).

21    The Tribunal explicitly considered whether it should adjourn the review, and decided not to. The Tribunal stated its reasons as follows:

12.     In this case the Tribunal wrote to the applicants under subsection 359A of the Act inviting them to provide comments and/or or response to the Tribunal letter of 7 January 2019. The Tribunal notes that the applicants have had the benefit of representation from a registered migration agent to assist with their review application. Yet, neither the applicants nor their representative provided comments and/or or response within the prescribed periods set for this purpose.

13.     The Tribunal has had regard to the fact that the visa applications were refused by the Department on 20 December 2016, because the first named applicant was unable to meet the cl.457.223(4)(a). This clause requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The applicants submitted a copy of the primary decision record with the review application. The applicants were aware of the reasons for the delegate’s’ decision for more than two years.

14.     The Tribunal note that, if the applicants are not granted a temporary work visa, they may be required to depart Australia. There is nothing to prevent the applicants from re-applying for a temporary visa once the first named applicant finds the new employer willing to sponsor and nominate the applicant for the position within their business.

15.     In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide their comments on or response to information contained in the Tribunal letter. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.

22    The Tribunal did not deny the Appellants procedural fairness. Nor was the Tribunal’s decision not to exercise its power to adjourn the review pursuant to s 363(1)(b) of the Act legally unreasonable.

23    The Appellants were invited to submit any comments or response to the Tribunal’s 7 January 2019 letter, but did not do so. Nor did they request any extension of time, as they were invited to. If Ms Virk wanted more time to find another sponsor — putting to one side the apparent futility of such a course, as explained below — she had the opportunity to ask for more time, but did not make any such request. Ground 6, as framed in the Notice of Appeal as a procedural fairness contention, must be rejected.

24    The more loosely-framed argument advanced by the Appellant by her written and oral submissions, to the effect that the Tribunal’s decision not to adjourn the review of its own motion was legally unreasonable, must be rejected. The Tribunal’s reasons for proceeding to determine the review were entirely rational and logical. They were not legally unreasonable.

25    The Tribunal noted that the Appellants had been invited to provide comments in response to the Tribunal’s s 359A letter, but had not provided any response within the prescribed period (T [12]). The Tribunal also noted that the Department refused Ms Virk’s visa application on 20 December 2016, because she was unable to meet cl 457.223(4)(a) of Sch 2 of the Regulations (ie, the nomination criterion). Contrary to Ms Virk’s submissions, this did not miss an important point, specifically that the Tribunal’s merits review of the sponsor’s nomination refusal decision had only recently concluded. Rather, the Tribunal’s reference to the information conveyed by the 2016 refusal of the delegate was rational, as it conveyed the single and decisive hurdle that Ms Virk would have to meet in the Tribunal review of the delegate’s refusal to issue her the visa for which she applied. Nor was it incumbent on the Tribunal to identify some other specific visa for which Ms Virk might apply, or the criteria for it, before the Tribunal could reasonably take into account that the Appellants might have to depart Australia but could re-apply for a temporary visa at a future time (T [14]).

26    The failure of the Tribunal to direct its own attention to the fact that the Tribunal had only recently affirmed the delegate’s refusal of the sponsor’s nomination application is not to the point. A decision, made on rational and intelligible grounds, does not become legally unreasonable because the Tribunal failed to consider a matter that was legally irrelevant in any event. Because Ms Virk did not have an approved nomination and because the Regulations had been changed in March 2018 — meaning that Ms Virk could not, even with indefinite time, obtain a new nomination for the same visa stream which the delegate had refused — the fact that the sponsor’s nomination review had only recently failed was irrelevant. There was nothing that Ms Virk could usefully do in any period during which the review might be adjourned.

27    I return, now, to address some further points, as they emerged from the terms of Ms Virk’s Notice of Appeal.

28    As it was framed in the Notice of Appeal, ground 3 contends that the court below and the Tribunal did not consider the impact of the delay in the Tribunal’s consideration of the sponsor’s nomination application. The period between when the sponsor lodged its application for review of the delegate’s decision to refuse the nomination application — 9 January 2017 — and the time when the Tribunal determined the review application by affirming the delegate’s decision — 2 January 2019 — was a period of close to two years. As framed in the Notice of Appeal, ground 3 raises matters concerning personal hardships of Ms Virk and her family during the close-to-two-year period while the sponsor’s application to the Tribunal in respect of the nomination refusal was pending. Those matters were not relevant to the narrow issue that the Tribunal had to decide, for reasons already stated in respect of grounds 5 and 7.

29    Ground 3 also states that “[d]uring this time of delay, the regulations also changed, which were detrimental to my case, my career and my visa prospects”. That is an apparent reference to changes made to the regime for skilled visas in March 2018 (as explained at paragraphs 9–10 above).

30    Insofar as ground 3 contends that the delay in the Tribunal’s determination of the sponsor’s review application was prejudicial to Ms Virk, and that the Tribunal failed to take that into account in addressing the merits of her review application (as distinct from the adjournment issue, addressed above), the ground does not raise any jurisdictional error. As the Minister submitted, the question for the Tribunal in the Appellants’ case was whether or not Ms Virk was the subject of an approved nomination. The change to the Regulations during the period in question, meaning that no employer could apply for approval of a nomination in that visa stream in respect of Ms Virk, was not legally relevant to the matter before the Tribunal.

31    The final contention advanced by ground 3 is that “[i]f the Tribunal had acted promptly to determine the sponsor’s nomination application, the application would have succeeded, and my visa would have been granted.” The reasons why the sponsor’s nomination application was refused, why that decision was affirmed by the Tribunal in that separate proceeding, and what might have happened had the sponsor’s case been determined more quickly, were not matters before the Tribunal in the Appellants’ case, and were not matters to which regard could have been had by the Tribunal. As already stated, the issue before the Tribunal was whether or not Ms Virk had an approved nomination so as to satisfy that aspect of the eligibility criteria specified in cl 457.223(4)(a) of Sch 2 of the Regulations. Ground 3 must therefore be rejected.

32    For the foregoing reasons, the grounds of appeal do not have merit, and the appeal must be dismissed.

33    Even if, contrary to the foregoing, any of the grounds of appeal had been made out, the appeal would still have to be dismissed. That is because the primary judge concluded that, even if there had been jurisdictional error on the part of the Tribunal, relief would be refused on the basis of futility. In this regard, the primary judge noted the Minister’s submission that even if the Tribunal’s decision were tainted with jurisdictional error, relief ought to be refused on the basis that it would be futile to remit the matter to the Tribunal in light of the changes to the Regulations made in March 2018 (J [57]–[58]). The primary judge observed that it was not strictly necessary to deal with the submission given that the Tribunal had not fallen into jurisdictional error, but went on to say that “[t]he Minister’s submissions must, however, be accepted” (J [60]).

34    The primary judge, having referred to details concerning the changes to the Regulations in March 2018, explained why those changes meant that it would be futile to grant relief. The primary judge said (emphasis in original):

63.    In the applicant’s case, she is not currently the subject of a nomination approved pursuant to s 140GB of the Act. Under the Regulations as they currently apply, such a nomination may, relevantly, be made in respect of the holder of a Subclass 457 visa: see regs 2.72(1)(b)(i) and 2.73(1)(a). The Regulations no longer provide that a nomination may be made in respect of a person making an application for a Subclass 457 visa.

64.    It follows that the granting of relief sought by the applicant would be futile. If the Tribunal were to consider the merits of the applicant’s visa application, it would be bound to find that the applicant does meet the essential criterion pursuant to cl 457.223(4) of the Regulations which must be satisfied at the time of the decision, as she is not the subject of a nomination of an occupation which has been approved under s 140GB of the Act. As the applicant is not the holder of a Subclass 457 visa, she cannot be nominated for an occupation pursuant to reg 2.72(1) and 2.73(1) of the Regulations. There are no circumstances in which it would be possible for the applicant to satisfy all of the criteria for the grant of the visa: Kainth v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1629 at [45] per Anderson J.

35    In her appeal, Ms Virk did not challenge the primary judge’s conclusion that relief ought to be refused in any event on the basis that it would be futile. On the contrary, Ms Virk accepted that there would be no point sending the case back to the Tribunal.

36    As to costs, Ms Virk submitted that, if the appeal is dismissed, she should not be required to pay costs, due to her personal circumstances. She said that, if the Court were to find legal error, but refuse relief on futility grounds, then she should not be required to pay costs.

37    Costs will be awarded in favour of the Minister. Ms Virk has not established any legal error. In any event, even if I am wrong in rejecting the contention of legal error on the part of the Tribunal, I would still award costs in favour of the Minister because the primary judge identified why it would be futile to grant relief, yet Ms Virk launched this appeal, and has persisted in her pursuit of the appeal, nonetheless.

Associate:

Dated:    14 August 2026