Background
Jatinderpal Kaur, an Indian citizen, applied in 2017 for a Regional Employer Nomination (subclass 187) visa based on a hairdresser position nominated by Vihaan Enterprises Pty Ltd. The employer’s nomination was refused. A ministerial delegate consequently refused Kaur’s visa application because cl 187.233(3) of the Migration Regulations 1994 (Cth) required an approved nomination. The former Administrative Appeals Tribunal affirmed that decision, finding that the requirement could not be satisfied by a later nomination from a different employer.
Kaur sought judicial review, but a Judicial Registrar of the Federal Circuit and Family Court of Australia summarily dismissed her application. She applied three days late for review of the Registrar’s decision. The primary judge refused an extension of time because her explanation for the delay was unsatisfactory and her proposed judicial-review grounds disclosed no reasonably arguable jurisdictional error. Kaur then sought leave to appeal to the Federal Court.
The Court’s Holding
Justice Hill refused leave to appeal. The primary judge had applied the correct principles governing extensions of time and was entitled to conclude that Kaur had offered no satisfactory explanation for the delay and had no reasonably arguable case. Kaur did not identify any error of principle, material factual mistake, overlooked consideration, or other error in the exercise of the primary judge’s discretion.
The Court also held that the Tribunal had made the only decision legally available. Because Vihaan’s nomination had not been approved, Kaur could not satisfy cl 187.233. The provision concerned the original nomination accompanying the visa application, so a nomination by another employer could not be substituted. The primary judge had not overlooked relevant information or denied Kaur procedural fairness, and her self-represented status did not entitle her to legal representation or alter the applicable law. No substantial injustice would result from refusing leave because any remittal would necessarily produce the same outcome.
The application for leave to appeal was dismissed, and Kaur was ordered to pay the Minister’s costs fixed at $5,000.
Key Takeaways
- A subclass 187 visa could not be granted unless the original sponsoring employer’s nomination was approved.
- A later nomination by a different employer could not be attached to the existing visa application to satisfy cl 187.233.
- Leave to appeal an interlocutory decision requires sufficient doubt about the decision below and a risk of substantial injustice; neither was established here.
Why It Matters
The decision underscores that an applicant’s lack of fault cannot overcome a mandatory visa criterion. Where the required employer nomination was refused, neither the Tribunal nor a reviewing court could grant relief merely because the visa applicant had otherwise complied with the application process.
It also illustrates the limits of appellate intervention in discretionary decisions about filing deadlines. A proposed appeal must identify an arguable legal error, and leave may be refused where remittal would be futile because the decision-maker would be bound to reach the same result.