Federal Court of Australia

Wang v Minister for Immigration and Citizenship [2026] FCA 1205

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicants pay the first respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

BURLEY J:

1    The applicants seek leave to appeal from a decision of the Federal Circuit and Family Court of Australia (FCFCA): Wang v Minister for Immigration and Citizenship [2025] FedCFamC2G 999 (judgment).

2    On 14 November 2019 the first applicant, Ms Wang applied for the grant of a Regional Employer Nomination (Permanent) (Class RN) visa (visa application) and the second and third applicants, her husband and her son, made related applications as members of Ms Wang’s family. On 14 November 2019, Pacific Vintners Pty Ltd applied to nominate Ms Wang for a position in that company, in respect of which the visa would have applied.

3    The visa application was refused by a delegate of the Minister for Immigration and Multicultural Affairs. Two decisions of the Administrative Appeals Tribunal flowed from that refusal, both of which were decided on 2 November 2023.

4    In the first, Pacific Vintners sought to review a finding of the delegate that Pacific Vintners did not meet the requirement that “there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator” pursuant to reg 5.19(9)(d) of the Migration Regulations 1994 (Cth). The Tribunal affirmed the decision of the delegate (nomination decision): Pacific Vinters Pty Ltd (Migration) [2023] AATA 3688.

5    In the second, the applicants sought to review the delegate’s decision that by reason of failing to meet the requirements of reg 5.19(9)(d), the visa application must fail because clause 187.233(3) of Schedule 2 of the Migration Regulations required that the visa application include a nomination approved by the Minister. The Tribunal also affirmed the decision of the delegate in this review (visa decision): Wang (Migration) (Administrative Appeals Tribunal, Member P. Maishman, 2 November 2023).

6    The applicants subsequently applied to the FCFCA for judicial review in respect of the visa decision, but not the nomination decision.

7    A Registrar of the FCFCA summarily dismissed the application on the basis that it had no reasonable prospects of success.

8    On 3 May 2025 the applicants sought a review of the Registrar’s decision pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

9    On 2 July 2025, the primary judge dismissed the application in the judgment.

10    The applicants now seek leave to appeal from the judgment to this court pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Leave is required because the summary dismissal of a proceeding is interlocutory in nature: Applicant S1494/2003 v Minister for Immigration and Citizenship [2008] FCA 286; 166 FCR 474 at [16] (Reeves J). In such an application, the substantive question for consideration is whether the decision of the primary judge is attended with sufficient doubt to warrant being reconsidered and whether substantial injustice would result if were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-9 (Sheppard, Burchett and Heerey JJ).

11    The applicants advance the following draft grounds of appeal in support of their application for leave:

(1)    The primary judge erred in law by summarily dismissing the judicial review application pursuant to rule 13.13(a) without properly assessing whether the application raised an arguable case of jurisdictional error, particularly in relation to the interpretation and application of clause 187.233(3) of Schedule 2 to the Migration Regulations.

(2)    The primary judge erred by failing to consider whether the Administrative Appeals Tribunal had denied procedural fairness in handling the nomination review, including the refusal to accept the sponsor’s representative’s attendance and disregarding potentially relevant evidence such as job advertisements.

(3)    The primary judge did not give sufficient weight to the fact that the applicant was self-represented, required an interpreter, and may not have been able to clearly articulate legal arguments, thereby justifying a more cautious approach to summary dismissal.

(4)    The application raised serious questions of law as to the Tribunal’s procedural handling of the sponsor nomination process and whether the applicant’s inability to meet the nomination requirement was due to factors beyond her control, including employer restructuring and pandemic-related disruption.

12    Ms Wang appeared at the hearing and represented herself and the other applicants with the assistance of an interpreter. She filed no written submissions. The Minister was represented by HWLE Lawyers and filed written submissions in advance of the hearing.

13    At the hearing, Ms Wang submitted that the main issue was that the primary judge failed to analyse the case based on the circumstances of the applicants or to have sufficient sympathy to their human rights. She submitted that she had the personal competence to meet the requirements for the visa but the company downsized during the COVID pandemic and so her position was not required. She submitted that her family is now settled in Australia, they pay their taxes and that they should be permitted to remain in Australia. She also submitted that her husband works and her child is undertaking schooling in Australia.

14    The grounds advanced in the application for leave are not the same as those advanced before the primary judge and accordingly leave would be required for the applicants to advance them for the first time on appeal: DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 24; 302 FCR 25 at [28]–[30] (Sarah C Derrington, Goodman and Raper JJ). As the applicants are self-represented, and the discretion to grant or refuse such leave is broad, I attend to each on their merits in considering the question of leave.

15    In ground (1), the applicants contend that the primary judge made an error of law in rejecting the application. In this regard it is to be noted that the applicants seek judicial review of the visa decision. They were not parties to the nomination decision and did not seek judicial review of the nomination decision.

16    After providing a detailed summary of the events leading to the application before her, the primary judge addressed an argument that there was no proper hearing by the Tribunal in respect of Pacific Vintners’ application for approval of the nomination of the first applicant and that this was not reasonable. The judge also addressed a submission that advertisements for her job were also given to the Tribunal.

17    Her Honour said:

31    In relation to the first applicant’s first argument referred to in [30(a)] of this judgment, I took the first applicant to the paragraphs of the Nomination Decision as set out at [10] of this judgment, to outline to the first applicant that in fact the Tribunal had invited Pacific Vintners to a hearing, but Mr Yang, the director of Pacific Vintners, said that he did not wish to appear at the hearing. I also explained to the first applicant, the decision the Tribunal reached in the Nomination Decision and why the Tribunal reached that decision as set out at [11] and [12] of this judgment. After I explained this to the first applicant she replied that she understood, but did say that she had evidence of advertisements that advertised her job. I explained to the first applicant that the Nomination Decision was not the subject of judicial review and I could not look at any advertisements that the first applicant said she had, as that was not relevant to the visa decision.

18    The conclusion of the primary judge was that the nomination decision of the Tribunal was not the subject of challenge before her and is unimpeachable. The consequence is that the applicants could not satisfy the requirements of clause 187.233(3) because a prerequisite of a valid visa application is an approved nomination. No error of law is demonstrated in this reasoning.

19    The further arguments advanced by Ms Wang during the present hearing do not address this, or any other, of the draft grounds of appeal. Nor do they raise any matter that the Court is able to take into account in assessing whether the primary judge erred.

20    In ground (2) the applicants contend that the primary judge failed to afford them procedural fairness in handling the nomination review, including the refusal to accept the attendance of the sponsor’s representative and disregarding potentially relevant evidence such as job advertisements.

21    There is no apparent basis for the allegation of denial of procedural fairness. As I have noted, the nomination decision is not the subject of the present application for review. If it were, then the contention would fail because it is apparent on the face of the reasons given by the Tribunal that Pacific Vintners was represented at the hearing and, as the primary judge notes at [10] of the judgment, declined the opportunity to give evidence. To the extent that this is a repetition of the argument advanced before the primary judge, the passage set out above at [31] of the judgment provided an answer to it.

22    Further, the visa decision records that the applicants appeared before the Tribunal, gave evidence and presented their arguments. Their evidence was given with the assistance of an interpreter in the Mandarin and English languages. They were also represented. Accordingly, there is no apparent basis upon which the allegation of lack of procedural fairness may succeed in respect of the visa decision.

23    In ground (3) the applicants contend that the primary judge did not give sufficient weight to the fact that they were self-represented, required an interpreter, and may not have been able to clearly articulate legal arguments, thereby justifying a more cautious approach to summary dismissal. However, as the reasons in [31] of the judgment set out above demonstrate, it is apparent that the primary judge was alert to the difficulties confronting Ms Wang as a self-represented litigant and satisfied the obligations upon the court in that regard: Lamont v Malishus Limited (No 2) [2022] FCA 237 at [79]–[84] (Burley J). No evidence suggests otherwise.

24    In ground (4) the applicants contend that the application raised serious questions of law as to the Tribunal’s procedural handling of the sponsor nomination process and whether the applicant’s inability to meet the nomination requirement was due to factors beyond her control, including employer restructuring and pandemic-related disruption.

25    This ground does not of itself identify alleged error on the part of the primary judge. To the extent that the ground raises a contention that the primary judge erred by failing to exercise a discretion in favour of the applicants it must be rejected. No such discretion resided in the FCFCA which would have enabled the appeal to that court to succeed on that basis.

26    Accordingly, the application for leave must be refused. The applicants must pay the respondents’ costs of the proceedings to be taxed or agreed.

Associate:

Dated:    25 August 2026