Talukder v Minister for Immigration and Citizenship - Migration Appeal

Original Word Document (96.8 KB) Federal Court of Australia

Talukder v Minister for Immigration and Citizenship [2026] FCA 331

| Appeal from: | Talukder v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1397 |
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| File number(s): | NSD 14 of 2025 |
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| Judgment of: | GOODMAN J |
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| Date of judgment: | 25 March 2026 |
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| Catchwords: | MIGRATION – application for leave to appeal from an order of a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing an application for review of a decision of a Registrar of that Court summarily dismissing an application by the applicant for review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the first respondent to refuse the issue of a visa to the applicant – absence of doubt as to the correctness of the primary judge’s decision – in any event remittal to the Administrative Appeal Tribunal futile in circumstances where the applicant is unable to satisfy one of the pre-conditions necessary for the grant of the visa – application dismissed |
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| Legislation: | Federal Court of Australia Act 1976 (Cth), s 24

Migration Act 1958 (Cth), ss 65, 359AA, 359A

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 13.13

Migration Regulations 1994 (Cth), Sch 2, cl 187.233 |
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| Cases cited: | D e cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397

Talukdar (sic) (Migration) [2021] AATA 4837

Talukder v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1247

Talukder v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1397 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 45 |
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| Date of hearing: | 12 March 2026 |
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| Counsel for the Applicant: | The applicant appeared in person |
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| Solicitor for the First Respondent: | Mr T Pattinson of Mills Oakley |
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| Counsel for the Second Respondent: | The second respondent filed a submitting notice, save as to costs |
ORDERS

| | | NSD 14 of 2025 |
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| BETWEEN: | RAZIBUL HASAN TALUKDER

Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | GOODMAN J |
| DATE OF ORDER: | 25 march 2026 |
THE COURT ORDERS THAT:

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

2. The application for leave to appeal be dismissed.

3. The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

GOODMAN J:

A.    Introduction

1 The applicant is a citizen of Bangladesh. He seeks leave to appeal from an order made by a Judge of the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) on 19 December 2024. By that order, the primary judge dismissed an application for review of a decision made by a Registrar of the Circuit Court to dismiss the applicant’s application to that Court for the review of a decision by the Administrative Appeals Tribunal affirming a decision of a delegate of the first respondent Minister refusing to grant a visa to the applicant.

2 The primary judge published her reasons for doing so, as Talukder v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1397 (J).

B.    Background

3 The relevant background is set out below.

4 On 7 December 2017, the applicant applied for a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa.

5 A necessary condition for the grant of that visa is the satisfaction of all criteria prescribed for it: s 65 of the Migration Act 1958 (Cth).

6 The mandatory criteria included cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) which provided:

(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)    subparagraph 5.19(4)(h)(ii); or

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

(aa)    in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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 made the nomination.

(3)    The Minister has approved the nomination.

(4)    The nomination has not subsequently been withdrawn.

(4A)    Either:

(a)    there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

(b)    it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

(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.

7 For the purposes of the application for the visa, the nomination was made by Ms Aus Bd Pty Ltd (sponsor).

8 On 11 December 2018:

(1) the sponsor’s nomination application was refused (nomination refusal decision); and

(2) the Minister’s department wrote to the applicant inviting the applicant to comment on that decision.

9 On 24 December 2018, the sponsor applied to the Tribunal for review of the nomination refusal decision.

10 On 24 January 2019 a delegate of the Minister made a decision, refusing to grant the visa on the ground that the Minister had not approved the nomination of the sponsor as required by cl 187.233(3) of the Regulations (visa refusal decision).

11 On 11 February 2019, the applicant applied to the Tribunal for review of the delegate’s decision.

12 On 10 August 2020, the sponsor withdrew its application for review of the nomination refusal decision.

13 On 7 October 2020, the Tribunal invited the applicant to appear at a hearing by telephone (by Microsoft Teams audio) which was scheduled for 16 November 2020.

14 That invitation included:

INVITATION TO ATTEND A HEARING – MR RAZIBUL HASAN TALUKDER

I am writing about your application for review of a decision to refuse to grant a 187 - Regional Sponsored Migration Scheme visa.

We have considered the material before us but we are unable to make a favourable decision on this information alone.

You are invited to appear by telephone before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case. We will call you at the specified date and time.

Date: 16 November 2020

Time: 1:30 pm (TAS time)        1:30 pm (VIC time)

By phone: The number we have for you is … . Please advise if this is not the correct number or if you would prefer us to call you on another number. Please note that you should arrange to be available for up to 3 hours. Please ensure that you are in a private place where you will not be interrupted. Please also ensure that your telephone is fully charged and you have all your documents with you.

One of our officers will contact you close to the hearing time to ensure that the telephone connection is working.

Interpreter: Please advise us at least 7 days before the hearing if you require an interpreter.

Please see the COVID-19 Special Measures Practice Direction – Migration and Refugee Division (available at www.aat.gov.au/landing-pages/practice-directions-guides-and-guidelines/covid-19-special-measures-practice-direction-migra) for further information and directions about the current procedures for the AAT.

What you should do on receipt of this letter

Please read and complete the enclosed 'Response to hearing invitation' form and return it to the AAT within 7 days of receipt of this letter.

Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a NAATI accredited translator.

We request that the requested material and other evidence are provided to us at least 7 days before the hearing date.

Other things to note

If you are not able to participate in this telephone hearing, you need to advise us as soon as possible. Please note that we will only make changes if satisfied that you have a good reason for being granted an adjournment. The Presiding Member will consider any submission you make about why it is not suitable or possible for your hearing to proceed and you will be advised of the outcome of the consideration before the hearing. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

If you do not participate in the scheduled hearing (that is you do not answer your phone at the scheduled date and time), we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.

We may make a decision at the end of your hearing.

The enclosed leaflet ‘Information about hearings – MR Division’ contains important information about hearings, dismissals and your rights.

If you have any questions, please email mrdivision@aat.gov.au, or contact me on the number listed below, or telephone our national enquiry line on … . For language assistance, please contact the Translating and Interpreting Service (TIS) on … .

(bold and underline emphasis in original)

15 On 16 November 2020, the applicant attended the hearing by telephone.

16 On 27 August 2021, the Tribunal affirmed the decision under review and provided its reasons for doing so: Talukdar (sic) (Migration) [2021] AATA 4837 (Tribunal’s decision).

17 As the primary judge noted at J[9] to [11]:

9    The Tribunal observed that the Nominating Employer had applied for review of the nomination refusal, but had then withdrawn its application (at [13]).

10    The Tribunal accepted that the circumstances that led to the nomination refusal linked to the applicant’s visa application were beyond his control (at [16]). The Tribunal considered at [17]-[19]:

1.     While the Tribunal appreciates and considers it understandable that Mr Talukder is upset and extremely distressed by what has happened, it remains the case that the application for the nomination of the position related to his Subclass 187 visa application has not been approved and no review is pending before the Tribunal of the decision to refuse the nomination application. This means that the matter has been finalised.

2.     As the Tribunal explained at the hearing, it is a requirement for the grant of the Subclass 187 visa under cl 187.233(3) of Schedule 2 to the Regulations that there is an approved nomination. This is a question of fact. The Tribunal acknowledges that the refusal of the application for the visa has placed Mr Talukder in a most unfortunate position, which is not of his own making. However, the Tribunal has no discretion in relation to the requirement that the related nomination application be approved.

3.     The Tribunal appreciates that Mr Talukder wishes to make another visa application. However, the applicable criteria for the grant of the Subclass 187 visa application that Mr Talukder made on 7 December 2017 cannot be satisfied by the lodgement of any subsequent visa application. In the circumstances and having regard to the objective of the Tribunal, the Tribunal declined to defer making its decision in the present matter pending Mr Talukder making another visa application.

11    Having regard to the fact that the nomination had been refused, and the application for review of that decision had been withdrawn, the Tribunal concluded that the applicant was unable to meet cl 187.233(3) of Schedule 2 to the Regulations. Accordingly, the Tribunal affirmed the Delegate’s decision (at [20]-[26]).

18 On 17 September 2021, the applicant filed an application with the Circuit Court seeking judicial review of the Tribunal’s decision. The Minister subsequently applied for the summary dismissal of that application pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

C.    Registrar’s decision

19 On 19 November 2024 and following a hearing conducted on that day, a Registrar of the Circuit Court summarily dismissed the application for judicial review. The Registrar’s reasons are set out in Talukder v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1247 (Registrar’s Decision, or R). The Registrar’s essential reasoning was expressed at R[7] to [23] as follows:

7    The application for judicial review contains three grounds. Ground one is as follows:

The Tribunal's decision is infected by legal error due its failure to give adequate procedural fairness to the applicant.

Particulars

The Tribunal held the hearing through MS Teams. Though, the Tribunal has the discretion to hold the hearing through MS Teams, however, the discretion should be exercised reasonably by providing procedural fairness to the applicant. It is relevantly noted that the Tribunal failed to make inquiry with the applicant whether he has necessary logistical facility including a private room for the hearing. As a result of failure of the Tribunal not making reasonable inquiries to decide whether it is reasonable to hold the hearing through MS Teams, the Tribunal exercised its discretion unreasonable and thus, denying procedural fairness to the applicant.

8    I am satisfied that this ground does not have reasonable prospects of success, because the Tribunal did make reasonable inquiries to determine whether it was practicable for the applicant to attend the hearing by Microsoft Teams telephone link.

9    The hearing invitation asked the applicant to advise the Tribunal as soon as possible if he was not able to participate in the hearing by telephone (CB 93). The brochure accompanying the hearing invitation relevantly said the following (CB 97, see to the same effect, the hearing invitation itself at CB 92):

If the hearing is by telephone, you will be contacted by a hearing attendant or a Member on the number you provided. If at any time you have difficulty hearing the Member, the interpreter or the hearing attendant, you should inform the Member or hearing attendant as soon as possible.

If the hearing is by telephone or video you should be in a quiet and private place where you will be able to participate without distraction and, if your review relates to a protection visa, where you cannot be overheard.

10    In response to the hearing invitation the applicant provided a form in which he stated that there was no issue that may affect his ability to take part in the hearing (CB 101), and that he did not believe that he would experience difficulty participating in the hearing by telephone (CB 102).

11    There is no evidence before the Court to suggest that the applicant said anything at the Tribunal hearing itself to indicate that the form of the hearing was causing the applicant any difficulty.

12    Ground two is as follows:

The Tribunal failed to comply with s 359AA and/or s 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason, for affirming the decision under review.

Particulars

The Tribunal had the intention to put information to the applicant under S 359AA of the Migration Act prior to the hearing because the information the AAT put to the applicant under Section 359AA was the information related to AAT's decision (differently constituted) in relation to the nomination. The above decision was made on 18 August 2020 well before the hearing scheduled for the applicant's matter.

Despite that, the AAT decided not to put that information and invite the applicant to comment or respond and decided to surprise the applicant during the hearing. The Tribunal was aware that the applicant was a self-represented applicant and if such information under section 359AA was put to the applicant prior to the hearing the applicant could have sought immigration advice to prepare response and representing him in the hearing. The action of the AAT surprising the applicant is not the intention of the Drafters of the Migration Act and the expectation of the Drafters is to provide maximum procedural fairness to the applicants.

Further, the Tribunal failed to explain to the applicant who was a self-represented applicant of the difference between comment was on and respond.

13    The first complaint in this ground is that the Tribunal should have used the procedure in s 359A of the Migration Act 1958 (Cth) (the Act) instead of the procedure in s 359AA of the Act. This complaint does not have reasonable prospects of success. As Judge McGuire (as his Honour then was) explained in Thompson v Minister for Home Affairs & Anor [2018] FCCA 1970 at [30]:

Where there exists a discretion in the Tribunal to proceed by either ss.359A or 359AA then no error of law can occur in the choice of one option over the other and where there is no legislative requirement to engage the applicant in the exercising of the discretion.

14    Although the applicant says that the use of the s 359A method would have given him time to get advice about the information that was the subject of the invitation to comment and respond, it was open to the applicant to seek such time when the Tribunal put that information to him using the s 359AA method. This he did not do. He instead elected to respond to the information immediately (CB 115, [14]).

15    The second complaint in ground two is that the Tribunal did not explain to the applicant the difference between commenting on and responding to the information that was the subject of the s 359AA invitation. Although such an explanation may have been warranted if the applicant had said that he did not know the difference between the two words, there is no evidence that the applicant said that during the Tribunal hearing. He instead opted to immediately respond when the information was put to him by the Tribunal in that hearing (CB 115, [14]). In those circumstances, I am satisfied that the applicant does not have reasonable prospects of proving that the Tribunal erred by failing to explain to the applicant the difference between commenting on and responding to the information that was the subject of the s 359AA invitation (see, to the same effect, Sandhu v Minister for Immigration & Anor [2013] FMCA 140 at [51]-[58] per Emmett FM, from which judgment an appeal was dismissed by Cowdroy J in Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 842).

16    Ground three is as follows:

The decision of the Tribunal is unreasonable.

Particulars

a. The Tribunal misunderstood the request of the applicant. The applicant request the AAT defer the decision until his nomination is approved. The Tribunal misunderstood the request and formed the view that the applicant requested to defer the decision to make another visa application.

b. The Tribunal misunderstood the criteria for the visa. The approval of the nomination is at the time of decision and not at the time of application.

17    I have not been given a copy of the audio recording of the Tribunal hearing, so I cannot know for sure what the nature of the request that was made of the Tribunal by the applicant was. In any event, there would have been no purpose in the Tribunal deferring the making of a decision so that the applicant could arrange for another employer to make a nomination application for him. That is because it is not legally possible for the applicant to satisfy cl 187.233(3) by reference to a new sponsor (Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [88]; (2017) 253 FCR 267 per Mortimer J (as her Honour then was), with Jagot and Bromberg JJ each concurring at 269), and there was no reasonable prospect of the original nomination application being approved as at the date of the applicant’s Tribunal hearing given that the sponsor had abandoned that application by withdrawing its Tribunal application for review of the delegate’s nomination refusal decision. It follows that the applicant does not have reasonable prospects of successfully prosecuting his application on the basis of the complaint made in particular (a) of ground three.

18    As to the second complaint in this ground, the dispositive reasoning in [23]-[24] of the Tribunal’s decision (CB 116-117) implicitly reveals that the Tribunal was (correctly) of the view that cl 187.233(3) is a time of decision criterion: the Tribunal brought to account events that occurred after the visa application was lodged (namely, the withdrawal of the sponsor’s Tribunal application) in determining whether the applicant met cl 187.233(3).

19    The applicant also said to me at the summary dismissal hearing that it was not his fault that the sponsor’s nomination application had failed. Unfortunately, the applicant’s degree of responsibility for the failure of the nomination application is irrelevant to the question posed by cl 187.233(3) (Heenatigala & Anor v Minister for Immigration & Anor [2020] FCCA 1055 at [22] per Judge Kirton, Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 437 at [3]-[4] per Perram J, Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138 at [31] per Judge Laing). Judge Kendall made the point in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 at [59]-[61] as follows:

Clause 187.233 in Schedule 2 of the Regulations did not provide for any discretion on the part of the Tribunal to take into account any “other factors” raised by the applicants. The question for the Tribunal was, simply, whether the first applicant was the subject of an approved nomination.

Here, the applicants did not provide any information to the Tribunal (or to the delegate or this Court) to indicate that the first applicant was the subject of an approved nomination.

The Tribunal was under no obligation (and had no discretion) to consider any other information or “factors” raised by the applicants (including in relation to the first applicant’s age, work experience or English language competency). Indeed, the Tribunal made the only decision open to it.

20    The applicant also said that he did not know why the delegate had refused the sponsor’s nomination application in the first place, but this Court cannot review that decision (s 476(2)(a) and s 476(4)(a) of the Act).

21    In light of the foregoing analysis, I conclude that the summary dismissal power conferred by r 13.13(a) is enlivened on the basis that the applicant does not have reasonable prospects of successfully establishing that the Tribunal’s decision is affected by jurisdictional error.

22    The summary dismissal power conferred by r 13.13(a) is also enlivened on a separate basis: it would be futile to remit the matter back to the Tribunal for redetermination, even if the Court were satisfied that the Tribunal’s visa refusal decision was affected by jurisdictional error, because the result of the remittal would inevitably be the same as the result of the Tribunal’s first review of the delegate’s visa refusal decision, namely, that decision would be affirmed. The practical finality that attends the refusal of the sponsor’s nomination application, noting that the sponsor withdrew its own Tribunal application several years ago, and the inability of the applicant to satisfy cl 187.233(3) by reference to a new sponsor or even a new nomination from the existing sponsor, means that the Tribunal would be effectively bound to affirm the delegate’s visa refusal decision if the matter were remitted to the Tribunal for rehearing. The failure of the sponsor’s nomination application was, unfortunately, “fatal” to the applicant’s visa application (Goswami v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1017 at [9(d)] per Griffiths J). The futility of granting the relief sought in the application for judicial review is an additional basis on which the summary dismissal power is enlivened (see, to similar effect, the conclusion reached by Deputy Chief Judge Mercuri in Patel v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 368 from [67]-[76]), in addition to the fact that the applicant does not have reasonable prospects of successfully establishing that the Tribunal’s visa refusal decision is affected by jurisdictional error.

23    The applicant also told me that he wants his bridging visa extended so that he can have more time onshore whilst he prepares an application for a new visa. That is a matter that the applicant will need to take up with the Minister’s Department directly, because this Court cannot grant or extend bridging visas.

(bold and italic emphasis in original)

20 On 2 December 2024, the applicant filed an application for review of the Registrar’s Decision. The grounds of review mirrored the grounds of review set out in the application for judicial review of the Tribunal’s decision ([19] above). The primary judge heard the application for review of the Registrar’s Decision on 13 December 2024.

21 On 19 December 2024, as noted above, the primary judge dismissed the application and confirmed the orders made by the Registrar.

C.1    The primary judge’s decision

22 After setting out the legal principles relevant to summary dismissal at J[18] to [21], the primary judge turned to the merits of the application for review of the Registrar’s Decision.

23 The primary judge’s reasoning concerning ground 1 was as follows:

23    Ground 1 contended that the applicant was denied procedural fairness. The applicant contended that the Tribunal exercised its discretion to conduct the hearing by MS Teams without making adequate inquiries.

24    The Tribunal had a discretion as to whether to conduct the hearing in-person or remotely through means such as MS Teams. Subject to considerations of reasonableness, that discretion was for the Tribunal to exercise: see Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194; (2002) 122 FCR 29 at [99] per Black CJ, Wilcox and Moore JJ

25    The Tribunal gave reasons for exercising its discretion to hold the hearing by telephone via MS Teams audio (at [9]). Those reasons were that:

(a)    the hearing was held during the COVID-19 pandemic;

(b)    the exercise of discretion was considered reasonable, having regard to the nature of the matter and the applicant’s circumstances;

(c)    the Tribunal had the objective of providing a review mechanism that was fair, just, economical and quick;

(d)    delay may be caused if the matter were not conducted by telephone; and

(e)    the Tribunal was satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

26    The reasons given provided an evident and intelligible justification for the exercise of discretion: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76]. The matters considered were, clearly enough, capable of informing the exercise of discretion. The applicant has not demonstrated, even propositionally, that this reasoning was not open to the Tribunal.

27    The applicant contended that it was unreasonable for the Tribunal not to have made inquiries as to whether he had the necessary facilities, including a private room, for the conduct of the hearing.

28    However, there is no suggestion in the evidence that the applicant raised any concerns regarding his ability to access a private room or otherwise when responding to the hearing invitation that was sent by the Tribunal. That invitation stated: “[p]lease ensure that you are in a private place where you will not be interrupted” (CB 92). The invitation instructed the applicant to advise the Tribunal as soon as possible if unable to participate in the telephone hearing (CB 93). In the response form, the applicant ticked the box indicating “No” in relation to the question of whether there was any issue that may affect his ability to take part in the hearing (CB 101). The materials do not otherwise indicate any inability on the part of the applicant to have taken part in the hearing before the Tribunal.

29    Having regard to the above, it is apparent that this ground has no reasonable prospect of success.

(italic emphasis in original)

24 The primary judge’s reasoning concerning ground 2 was as follows:

30    Ground 2 contended that the Tribunal failed to comply with s 359A of the Migration Act 1958 (Cth) (Act) (through its application of s 359AA). In this regard, it is suggested that the Tribunal failed to explain to the applicant (who was self-represented) the difference between comment and response.

31    However, the applicant has not explained why the Tribunal was under an obligation to do so in order to comply with s 359AA of the Act. There is authority to the contrary: Sandhu v Minister for Immigration and Citizenship [2013] FMCA 140 at [55] per Emmett FM (from which an appeal was dismissed by Cowdroy J in Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 842).

32    The Tribunal’s decision record (at [13]) indicates that the Tribunal gave the applicant clear particulars of the information in question, explained to the applicant the relevance of the information and the consequences of it being relied upon, and invited the applicant to comment on or respond to it. It is unclear how the distinction between comments and response could be said to have impeded the applicant’s understanding in a manner capable of resulting in non-compliance with s 359AA of the Act. The Tribunal’s decision record indicates that the applicant did respond, by providing comments orally, at the hearing before the Tribunal. There is no indication that the applicant raised any difficulty with the Tribunal in understanding the difference between comments and response.

33    The particulars to the ground suggested that the applicant was provided with insufficient opportunity to comment on account of the information only being presented to him at hearing. However, the Tribunal’s decision record indicates that the Tribunal complied with s 359AA(1)(b)(iii) of the Act, by informing the applicant that he did not need to comment or respond immediately and asking if he wished to seek additional time. The decision indicates that the applicant elected to respond immediately, and did not seek additional opportunity to comment or respond. In these circumstances, it is difficult to see how the Tribunal’s election to use the procedure in s 359AA of the Act at hearing could be argued to have been legally unreasonable or to have otherwise resulted in relevant error on the part of the Tribunal. This is notwithstanding the ability of the Tribunal to have issued the invitation earlier, by other means.

34    Having regard to the above, I accept the Minister’s submission that ground 2 has no reasonable prospect of success.

(bold and italic emphasis in original)

25 The primary judge’s reasoning concerning ground 3 was as follows:

35    Ground 3 contended that the Tribunal’s decision was unreasonable because the Tribunal misunderstood the applicant’s request to defer its decision until the nomination was approved. The Tribunal was said to have incorrectly understood that the request was to defer the decision to allow the applicant to make another visa application. Additionally, the ground suggested that the Tribunal misunderstood that the approval of the nomination was a time of decision requirement.

36    It appears from [19] of the Tribunal’s decision that the Tribunal thought that the applicant had sought deferral pending the making of a further visa application. However, there is no transcript or audio in evidence demonstrating exactly what was or wasn’t said at the Tribunal hearing.

37    In any event, as was submitted by the Minister, the difficulty for the applicant was that he was unable to meet the criteria for the visa in circumstances where the nomination had not been approved and the Nominating Employer had withdrawn its application for review before the Tribunal. The original nomination was therefore unable to be approved and no other nomination was capable of meeting the criterion in issue: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267 (Singh) at [82]-[90] per Mortimer J (as her Honour then was) (Jagot and Bromberg JJ agreeing). In these circumstances, even if there was some misunderstanding regarding what the applicant wished to do, it is difficult to see how this arguably could have made any difference to the decision.

38    The Tribunal’s decision record discloses no arguable basis for finding that the Tribunal misunderstood that the criterion was required to be met at the time of decision. The Tribunal found, at the time of decision, that the criterion was unable to be met.

39    Having regard to the above, I accept the Minister’s submission that ground 3 has no reasonable prospect of success.

(bold and italic emphasis in original)

26 The primary judge then reasoned:

40    For the reasons given above, I also accept the Minister’s submission that the relief sought by the applicant is futile: Singh at [82]-[90]. If I were to remit the matter, the Tribunal would have no option other than to reaffirm the Delegate’s decision. The applicant in this case is unable to meet the criteria for the visa. The Court would not grant relief in these circumstances.

41    As was submitted by the Minister, this provides a further basis upon which this matter has no reasonable prospect of success.

(italic emphasis in original)

C.2    The draft notice of appeal

27 On 9 January 2025, the applicant filed an application for leave to appeal to this Court and an affidavit which attached a draft notice of appeal. The proposed grounds of appeal are (as written):

1.    The Federal Circuit and Family Court of Australia failed to consider whether the Tribunal has taken reasonable step to explain about my rights under 359AA of the Act.

2.    The Federal Circuit and Family Court of Australia failed to engage in active intellect process because the applicant is a self-represented applicant at the Tribunal stage and did not know whether he can request for an in person hearing instead of MS Teams hearing.

3.    Ground 1

The Tribunal’s decision is infected by legal error due its failure to give adequate procedural fairness to the applicant.

Particulars

The Tribunal held the hearing through MS Teams. Though, the Tribunal has the discretion to hold the hearing through MS Teams, however, the discretion should be exercised reasonably by providing procedural fairness to the applicant. It is relevantly noted that the Tribunal failed to make inquiry with the applicant whether he has necessary logistical facility including a private room for the hearing. As a result of failure of the Tribunal not making reasonable inquiries to decide whether it is reasonable to hold the hearing through MS Teams, the Tribunal exercised its discretion unreasonable and thus, denying procedural fairness to the applicant.

4.    Ground 2

The Tribunal failed to comply with s 359AA and/or s 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason, for affirming the decision under review.

Particulars

The Tribunal had the intention to put information to the applicant under S 359AA of the Migration Act prior to the hearing because the information the AAT put to the applicant under Section 359AA was the information related to AAT’s decision (differently constituted) in relation to the nomination. The above decision was made on 18 August 2020 well before the hearing scheduled for the applicant’s matter. Despite that, the AAT decided not to put that information and invite the applicant to comment or respond and decided to surprise the applicant during the hearing. The Tribunal was aware that the applicant was a self-represented applicant and if such information under section 359AA was put to the applicant prior to the hearing the applicant could have sought immigration advice to prepare response and representing him in the hearing. The action of the AAT surprising the applicant is not the intention of the Drafters of the Migration Act, and the expectation of the Drafters is to provide maximum procedural fairness to the applicants. Further, the Tribunal failed to explain to the applicant who a self-represented applicant of the difference between comment was on and respond.

5.    Ground 3

The decision of the Tribunal is unreasonable.

Particulars

a.    The Tribunal misunderstood the request of the applicant. The applicant request the AAT defer the decision until his nomination is approved. The Tribunal misunderstood the request and formed the view that the applicant requested to defer the decision to make another visa application.

b.     The Tribunal misunderstood the criteria for the visa. The approval of the nomination is at the time of decision and not at the time of application

28 It may be noted that proposed grounds of appeal 3 to 5 reflect the grounds of review before the primary judge.

D.    Consideration

29 As the primary judge’s judgment was an interlocutory judgment, the applicant requires leave to appeal pursuant to ss 24(1)(d) and (1A) of the Federal Court of Australia Act 1976 (Cth).

30 The principles relevant to an application for leave to appeal are well-established. The applicant must demonstrate that the judgment in respect of which leave to appeal is sought is attended with sufficient doubt to warrant reconsideration and that if leave were to be refused in circumstances where the judgment is wrong there would be substantial injustice to the applicant: D e cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 (Sheppard, Burchett and Heerey JJ).

31 The applicant provided no written submissions ahead of the hearing in this Court.

32 At the hearing, the applicant did not expand upon his proposed grounds of review, suggesting only that the Tribunal failed properly to consider the evidence of his managerial duties; and that the Tribunal may have misunderstood him.

D.1    Proposed appeal grounds 1 and 4 – ss 359AA and 359A of the Act

33 It is convenient to address proposed appeal grounds 1 and 4 together as they each relate to whether the Tribunal complied with ss 359AA and 359A of the Act.

34 The primary judge’s reasons relevant to those grounds are set out at [24] above. With respect, I discern no error in that reasoning.

D.2    Proposed appeal grounds 2 and 3 – failure to engage in an active intellectual process/failure to afford procedural fairness

35 It is convenient next to address proposed appeal grounds 2 and 3 together.

36 The primary judge’s reasons relevant to the proposed appeal ground 3 are set out at [23] above.

37 Again, with respect, I discern no error in the reasoning of the primary judge.

38 To the extent that proposed appeal ground 2 is intended to contend that the primary judge erred in concluding that the Tribunal did not fail to afford procedural fairness to the applicant, that contention must fail for the same reasons as proposed appeal ground 3.

39 To the extent that proposed appeal ground 2 is intended to contend that the primary judge failed to afford procedural fairness to the applicant, there is no evidentiary basis for such a contention.

D.3    Proposed appeal ground 5 – legal unreasonableness

40 The final proposed appeal ground is proposed appeal ground 5.

41 The primary judge’s reasons relevant to this proposed ground are set out at [25] above.

42 Again, with respect, I discern no error in her Honour’s reasoning.

D.4    Conclusion as to sufficiency of doubt and exercise of the discretion to grant leave

43 The decision of the primary judge is, in my view, plainly correct. It follows that there is insufficient doubt to warrant reconsideration of that decision.

44 There is a further powerful and over-arching discretionary reason why leave to appeal should be refused. As the Registrar explained at R22 and the primary judge explained at J[40] to 41, even if the applicant were to succeed in setting aside the Tribunal’s decision, the remission of the matter to the Administrative Review Tribunal would be a futile exercise, in circumstances where: (1) the existence of an approved nomination is a pre-condition to the grant of a visa; and (2) there is no approved nomination in existence.

E.    Conclusion

45 The application for leave to appeal must be dismissed. There is no apparent reason why costs should not follow the event. I will make orders accordingly.

| I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. |
Associate:

Dated:    25 March 2026

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