Federal Court of Australia

Kaur v Minister for Immigration and Citizenship [2026] FCA 1651

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal dated 25 July 2025 is dismissed.

2.    The Applicant pay the First Respondent’s costs, fixed in the sum of $5,000.

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

REASONS FOR JUDGMENT

HILL J:

Introduction

1    This is an application for leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA): Kaur v Minister for Immigration and Citizenship [2025] FedCFamC2G 1118 (J). The primary judge dismissed an application for an extension of time within which to file an application to review a decision of a Registrar, who summarily dismissed an application for judicial review of a decision of the former Administrative Appeals Tribunal. The Tribunal, in turn, affirmed a decision to refuse to grant the Applicant a Regional Employer Nomination (subclass 187) visa.

2    At the end of the hearing on 2 November 2026, I made orders that the application for leave was dismissed, and that the Applicant pay the First Respondent’s costs fixed in the sum of $5,000. These are the reasons for that decision.

background

3    Application for 187 visa (May 2017): The Applicant is a citizen of India. On 4 May 2017, she applied for a 187 visa. The nominating employer was Vihaan Enterprises Pty Ltd, and the nominated occupation was hairdresser (J [7]).

4    Visa criteria: The criteria for a 187 visa were set out (relevantly) in cl 187.233 of Sch 2 of the Migration Regulations 1994 (Cth) as follows (see J [10], original emphasis):

187.233

(1)     The position to which the application relates is the position:

(a)     nominated in an application for approval that seeks to meet the requirements of:

(i)     sub paragraph 5.19(4)(h)(ii): or

(ii)     subregulation 5.19(4) as in force before 1 July 2012; and

(b)     in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

(2)     The person who will employ the applicant is the person who was the nominator in the application for approval.

(3)     The Minister has approved the nomination.

(4)     The nomination has not subsequently been withdrawn.

…

(5)     The position is still available to the applicant.

(6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.

5    Application refused (Aug 2018): On 24 August 2018, the Department wrote to the Applicant stating that Vihaan’s nomination had been refused, which meant that her application for a 187 visa could not be approved. She did not respond to that letter. On 28 September 2018, a delegate of the First Respondent (the Minister) refused the Applicant’s application for a 187 visa, on the basis that she did not meet the requirement in cl 187.233(3) (an approved employer nomination) (J [10]).

6    AAT affirms refusal (May, Jul 2020): On 15 October 2018, the Applicant applied to the Tribunal for merits review of the delegate’s decision (J [11]). On 2 April 2020, the Tribunal invited the Applicant to comment on adverse information, being that Vihaan had applied for review of the decision to refuse its nomination of the Applicant, and the Tribunal had decided that it did not have jurisdiction (J [12]).

7    The Tribunal held a hearing by telephone on 20 May 2020. At the end of that hearing, the Tribunal made an oral decision affirming the delegate’s decision to refuse the Applicant a 187 visa (J [16]). On 8 July 2020, the Tribunal provided the Applicant with a written statement of reasons (J [16]-[17]). The Tribunal found that the Applicant did not meet the criteria for a 187 visa, because the nomination by Vihaan was not approved and this requirement could not be satisfied by a later nomination of a position by a different employer (Tribunal reasons (AAT) [8], [10]).

8    Application for judicial review of AAT (Jun 2020): On 17 June 2020, the Applicant applied to the then Federal Circuit Court for judicial review of the Tribunal’s decision (J [19]). The originating application contained the following grounds (J [20]):

1.     The decision made by member of AAT contains jurisdictional error.

2.     The Decision is unjustified

3.     The migration decision under review is not a ‘privative clause decision’ within the meaning given by subsection 474 (2) of the Migration Act 1958.

9    Registrar dismisses application summarily (Jun 2025): On 23 June 2025, a Judicial Registrar of the FCFCOA summarily dismissed the application under r 13.13(a) of the previous Federal Circuit and Family Court of Australia (Div 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules), on the basis that the Tribunal had made the only decision open to it on the evidence (J [29]).

10    Application for review of the Registrar’s decision (Jul 2025): On 3 July 2025, the Applicant applied for judicial review of the Registrar’s summary dismissal decision (J [30]), under s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). The hearing before the primary judge was a hearing de novo: FCFCOA Rules r 21.04. By r 21.02(1) of the FCFCOA Rules, that application was required to be made within 7 days; that is, by 30 June 2025. The application was therefore made 3 days late, and the Applicant required an extension of time under r 21.02(2) (J [43]).

11    Primary judge dismisses application (Jul 2025): On 17 July 2025, the primary judge decided not to grant an extension of time, and dismissed the application for review of the Registrar’s decision.

12    Relevant factors: The primary judge stated that the discretion whether to extend time was guided by the following factors (J [46]):

(a)    the extent of the delay,

(b)    the explanation for the delay,

(c)    prejudice to the respondent due to the delay, and

(d)    the merits of the proposed application.

13    The most significant factors were (b) and (d) above.

14    Explanation unsatisfactory: The primary judge held that the Applicant’s explanation (that she did not realise the time limit for filing a review application from a decision of a Registrar was 7 days) was unsatisfactory, even acknowledging that she was legally unrepresented. This factor weighed against granting an extension of time (J [57]-[58]).

15    Lack of merit: The most significant factor was the merits of the proposed application for review of the Tribunal’s decision. The primary judge found that none of the Applicant’s proposed grounds contained a reasonably arguable case of jurisdictional error by the Tribunal.

    With ground 1 (alleged jurisdictional error), the Applicant asserted that Vihaan’s employer nomination was approved at the time of the delegate’s decision. The primary judge stated the Applicant had not filed any evidence in support of this argument, and this argument went only to the merits of the Tribunal’s decision (J [64]-[65]).

    With ground 2 (decision was unjustified), the primary judge held that it did not matter that the Applicant had done all that was necessary to obtain the visa, and that the failure of the employer’s nomination was not her fault. The Tribunal made the only decision open to make, and would have to make the same decision today if that matter were to be remitted (J [68]-[69]).

    With ground 3 (Tribunal decision not a ‘privative clause decision’), the Applicant did not say anything in support of this ground (J [72]).

16    As the Applicant was legally unrepresented, the primary judge also scrutinised the materials to see if there was any jurisdictional error in the Tribunal’s decision. The primary judge found that jurisdictional error had not been disclosed (J [75]).

17    Extension of time refused: Taking into account all the considerations identified, particularly the absence of a satisfactory explanation for the delay and the lack of any reasonably arguable case, the primary judge was not satisfied that it was in the interests of the administration of justice to extend time to bring the application for review (J [76]).

18    Application for leave to appeal (Jul 2025): On 28 July 2025, the Applicant applied for leave to appeal against the primary judge’s decision. That application contains three grounds:

1.     The Honourable Court misconstrued or misapplied clause 187.233 of the Migration Regulations 1994 (Regulations) and for that reason fell into jurisdictional error.

2.     The Honourable Judge Johns overlooked the relevant information and for that reason fell into jurisdictional error.

3.     The Honourable Judge Johns failed to consider that each case has its own facts and merits and ought to consider on a case-by-case basis.

19    The Applicant’s supporting affidavit dated 25 July 2025 contains the following statements:

5.     I believe the decision of the Court/Tribunal was affected by an incorrect application of legal principles.

6.     I was self-represented during the proceedings and required legal assistance for the hearing.

7.     The Honourable Judge Johns decision to refuse the nomination visa did not afford me procedural fairness and natural justice.

20    Hearing (Nov 2026): At the hearing on 2 November 2026, the Applicant was asked what information she says was overlooked by the primary judge, and how she was denied procedural fairness. She stated that she did not know, and that these grounds were added by her migration agent. She stated that she did everything right in applying for the visa, and that it was not her fault that the employer nomination was refused, and she did not know why it was refused.

analysis

21    Application for leave to appeal – general principles: The Applicant correctly recognises that she requires leave to appeal against the decision of the primary judge.

    The Registrar’s summary dismissal decision was interlocutory in nature, and thus any review of that decision by the primary judge was also interlocutory: CIK23 v Minister for Immigration and Citizenship [2025] FCA 896 at [12]-[15] (Bromwich J); Chaudhari v Minister for Immigration and Citizenship [2025] FCA 1055 at [29] (Downes J).

    By s 24(1A) of the Federal Court of Australia Act 1976 (Cth), an appeal from an interlocutory judgment of the FCFCOA shall not be brought without leave.

22    The Court considers two factors in particular in deciding whether to grant leave to appeal:

(1)    First, whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court exercising its appellate jurisdiction; and

(2)    Second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

Chaudari at [30], citing Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 at [5] (the Court).

23    Relevant to factor (1) above, the primary judge’s decision whether to extend time involved the exercise of a judicial discretion. It is not enough that this Court might have exercised the discretion differently. The Applicant must identify an error of the kind described in House v The King [1936] HCA 40; (1936) 55 CLR 499, including that the primary judge acted on a wrong principle, took account of an irrelevant consideration, failed to take account of a material consideration, mistook the facts, or reached a result from which error may be inferred: see BLX23 v Minister for Immigration and Citizenship [2026] FCA 1209 at [26] (Cheeseman J).

24    Duties to self-represented litigants: The Applicant is legally unrepresented on this application, as she was before the primary judge. A judge has a duty to ensure that a hearing is fair to all parties (that is, both applicants and respondents). If a party does not have a lawyer, the judge may tell them about the practices and procedures of the Court, as relevant, to try to ensure a fair hearing. However, the judge does not give legal or tactical advice to a party who does not have a lawyer, because the judge must be impartial. See generally NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (the Court); Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (the Court). Importantly, this duty is to ensure that the Court’s processes are fair: the Court must apply the law as it is, and cannot simply make orders to achieve a result that the Court thinks is “fair”.

25    Given the Applicant does not have legal representation, her arguments are to be read fairly. However, it is still necessary for the Applicant to identify an arguable error in the primary judge’s decision: BLX23 at [27]. I will also consider whether there is any obvious error in the decision of the primary judge, the Registrar or the Tribunal: see COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J); Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [2023] FCA 978 at [11] (Wheelahan J).

26    Sufficient doubt about the primary judge’s decision? Factor (1) in deciding whether to grant leave is whether there is sufficient doubt about the correctness of the primary judge’s decision to justify reconsidering this decision on appeal. Given this decision involved an exercise of discretion, the question is whether there is some error of principle or other significant error: see [23] above.

27    Primary judge applied the correct principles: The primary judge applied the correct principles in determining whether to grant an extension of time. His Honour identified the relevant factors (J [46], set out in [12] above), and then applied those factors in orthodox fashion. His Honour then weighed all those factors together in deciding that it would not be in the interests of the administration of justice to grant an extension of time (J [76]).

28    Conclusions on delay and merits open to the primary judge: The primary judge’s conclusions about the absence of any satisfactory explanation, and the lack of merits in the Applicant’s proposed arguments, were well open to his Honour, and do not reveal any error. In the case of the Applicant’s proposed ground 1 (asserted jurisdictional error), the key point was that the Applicant had not provided any evidence to support her assertion that the nomination of Vihaan had in fact been approved. And that assertion was contrary to the evidence before the Tribunal, including that the Tribunal (differently constituted) had decided it did not have jurisdiction to hear Vihaan’s application for merits review of the refusal of its nomination: see [6] above.

29    Applicant’s arguments on this application: Starting with the points made by the Applicant at the hearing (see [20] above), it does not matter in this proceeding that the Applicant did everything required to apply for a visa, and that it was not her fault that the employer nomination was refused. The employer nomination was in fact refused, and that meant that her application for a 187 visa also had to be refused. In the Tribunal, the only question was whether she met the criteria for the 187 visa or not, and the reasons that she did not meet the criteria were not relevant to the Tribunal’s decision.

30    Turning to the Applicant’s three grounds in the application for leave to appeal to this Court (set out in [18] above), those arguments are also without substance.

    First, the primary judge (and the Tribunal for that matter) did not misconstrue cl 187.233. Their interpretation was required by the Full Court decision in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267, which held that the “nomination” referred to in cl 187.233 was limited to the original nomination that accompanied the visa application, meaning that a new employer nomination could not be attached to an existing visa application. Here, the nomination provided by Vihaan was not approved at the time of the delegate’s and the Tribunal’s decision. Further, the Tribunal had separately determined that it did not have jurisdiction to review the refusal of Vihaan’s nomination. Not only was the employer nomination not approved at the time of the Tribunal’s decision, there was also no prospect of the Vihaan nomination being approved at a later date.

    Second, the primary judge did not overlook relevant information. As noted, the Applicant stated at the hearing that this argument was added by the migration agent. As just noted, the only relevant information on the Applicant’s application in the Tribunal is that her nomination by Vihaan had not been approved. Her application had to be refused on that basis.

    Third, for the same reasons, the primary judge did not fail to consider the individual merits of the Applicant’s case.

31    The same is true of the additional points made in the Applicant’s affidavit (set out in [19] above).

    As just explained the primary judge applied the correct principles in determining whether to grant an extension of time, and applied the correct interpretation of cl 187.233.

    Nothing in the material before the Court would suggest that the primary judge did not give the Applicant a reasonable opportunity to present her case: the Applicant was given an opportunity to provide written and oral submissions (the latter with the assistance of an interpreter); his Honour explained the nature of judicial review, and gave the Applicant an opportunity at the hearing to explain what was meant by her grounds of review.

    The Applicant was legally unrepresented before the primary judge (as in this Court). However, there is no entitlement to be legally represented in civil proceedings of this sort: SZRIF v Minister for Immigration and Border Protection [2015] FCA 680 at [26]-[27] (Rares J).

32    Substantial injustice if leave refused? Factor (2) in deciding whether to grant leave is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

33    In this case, as explained, the Tribunal made the only decision that was open to it to make: the Applicant’s employer nomination was not approved at the time of the Tribunal’s decision, and therefore the 187 visa could not be granted. Further, the Tribunal has refused an application to review the refusal of that employer nomination. Accordingly, the employer nomination by Vihaan has never been approved, and there is no prospect of it now being approved. Even if there were any error in the Tribunal’s decision (and there is not), there would be no point remitting the matter back to the Tribunal, because it would be bound to reach the same result: see Chaudhari at [39], [48].

conclusion

34    For these reasons, the application for leave to appeal was dismissed.

35    Costs: The usual position is that the unsuccessful party pay the legal costs of the successful party. A person’s financial capacity to pay costs is not relevant to whether costs should be awarded: Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25], [35] (the Court).

36    The Minister seeks costs fixed in the sum of $5,000. The Court has power to award costs in a fixed sum: see Federal Court Act, s 43(3)(d); Federal Court Rules 2011 (Cth), r 40.02(b). In an appeal from a decision of the FCFCOA in respect of a migration decision, the Federal Court Rules set out an amount that may be claimed if an appeal or application is discontinued before hearing (currently $5,648), and a higher amount that may be claimed if an appeal or application is dismissed after hearing (currently $8,907): see Federal Court Rules r 40.43, Sch 3 items 15.1 and 15.2. The amount sought by the Minister is lower than both of these amounts. I am satisfied that this amount is reasonable and proportionate, having regard to the nature and complexity of this proceeding: see Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288 at [18] (Kenny J).

37    As stated at the hearing, it is a matter for the First Respondent how it seeks to recover these costs: Webb v Australian Information Commissioner [2026] FCA 678 at [24] (Needham J). The First Respondent, as a model litigant, can be expected to enforce its legal rights in a reasonable manner.

Associate:

Dated:    2 November 2026