Regional Employer Nomination Visa Judicial Review Dispute: When does an unapproved and later deregistered employer nomination make Court proceedings legally futile?

Based on the authentic Australian judicial case Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 715 (File No MLG 1888 of 2023), this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Chapter 1: Case Overview and Core Disputes

Basic Information

• Court of Hearing: Federal Circuit and Family Court of Australia (Division 2)
• Presiding Judge: Judge Corbett
• Cause of Action: Application to review the exercise of delegated power by a Registrar; summary dismissal for no reasonable prospects; migration judicial review context
• Judgment Date: 19 May 2025
• Core Keywords:
  • Keyword 1: Authentic Judgment Case
  • Keyword 2: Subclass 187 visa
  • Keyword 3: Approved nomination requirement
  • Keyword 4: Summary dismissal no reasonable prospects
  • Keyword 5: Futility and remittal
  • Keyword 6: Corporate deregistration and legal personality

Background

The Applicants were a family unit from India. The First Applicant built a long personal history in Australia through study and work. She later applied for a Regional Employer Nomination (Permanent) visa, commonly known as a Subclass 187 visa, relying on a regional employer to sponsor her role.

The litigation did not begin as a dispute about whether the First Applicant could perform the job. It turned on a more technical but decisive issue: the legal status of the employer nomination that was supposed to support the visa application, and what the Administrative Appeals Tribunal could lawfully do once that nomination was not approved.

Importantly, at this stage of the story, the Court was not deciding whether the First Applicant deserved to stay in Australia. The Court was deciding whether her judicial review case could realistically go anywhere in law.

Core Disputes and Claims

The dispute had two layers.

1. Tribunal layer (the earlier decision being challenged):

– The First Respondent’s delegate refused the visa.
– The Second Respondent affirmed the refusal because the nominating employer was not approved under cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth).

1. Court layer (the litigation before this Court):

– The Applicants commenced judicial review of the Tribunal’s refusal.
– The Minister sought summary dismissal on the basis that the judicial review application did not identify any jurisdictional error and had no reasonable prospects of success.
– A Registrar summarily dismissed the judicial review application.
– The Applicants then sought review by a Judge of the Registrar’s dismissal, arguing they were not properly heard and had been denied natural justice, particularly in relation to the Tribunal’s refusal to grant further adjournment time to obtain legal advice and gather material.

Relief sought by the Applicants, in substance:
– To set aside the Registrar’s summary dismissal.
– To have the Tribunal decision quashed and the matter reconsidered.
– To obtain a fair opportunity to present their case, framed as natural justice.

Relief sought by the Minister, in substance:
– Confirmation that the summary dismissal was correct because the Applicants had no viable legal ground capable of amounting to jurisdictional error.
– A finding that any remittal would be legally pointless because the mandatory visa criterion could not be met, and because the employer had since been deregistered.

---

Chapter 2: Origin of the Case

The relationship in this case was not primarily between two private individuals. It was a practical, day-to-day migration relationship between a worker, her family, and the Australian migration system, mediated through the legal requirement that a specific employer nomination be approved.

Detail Reconstruction

The First Applicant arrived in Australia on a student visa in November 2008 and completed multiple vocational courses over several years. Over time, her life moved from study into work. She worked in hospitality management roles and built a working identity as a restaurant manager.

Eventually, a regional employer was said to be willing to sponsor her for permanent residency through the Subclass 187 pathway. The First Applicant’s account relied on the ordinary human logic of migration planning: she had worked, paid taxes, built skills, and her family’s future was rooted in Australia.

Financially and practically, the family’s daily life depended on the stability of the visa pathway. When a visa pathway hinges on a single employer nomination, the applicant’s migration prospects become tightly bound to the employer’s compliance and procedural success. That is where the case began to fracture.

Conflict Foreshadowing

The decisive moment was not a dramatic personal falling out. It was an administrative fact that became a legal wall: the employer nomination was refused, and that refusal was later affirmed in a separate review process.

Once the employer nomination failed, the visa criteria that required an approved nomination became impossible to satisfy. The First Applicant experienced this as unfair because she was not the decision-maker who failed the nomination process. The Court, however, was required to treat the visa criteria as law, not as a moral assessment.

A second decisive moment was procedural: when the Tribunal set a hearing date, the Applicants sought adjournments. One adjournment was granted. A further adjournment was refused, and the Tribunal proceeded to decide the matter. The Applicants experienced this as a denial of natural justice because they said they needed time to obtain legal advice and compile documents. The Court had to decide whether that complaint could plausibly amount to a legal error capable of sustaining judicial review, especially when the substantive visa criterion still could not be met.

---

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

The Applicants’ materials in the Court proceeding focused on these themes:

• Work and migration history: the First Applicant’s long period of study and employment in Australia, including hospitality management roles.
• Employment contract narrative: an asserted contract with the nominating employer for a restaurant manager role, with an annual salary stated as AUD $55,000, and with an expectation of ongoing employment upon visa grant.
• Fairness and personal impact: emphasis on the children’s schooling and future, and the emotional and practical consequences of losing the visa pathway.
• Natural justice complaint: the Tribunal should have granted more time because the Applicants said the employer received requested documents late and sought legal advice shortly before the hearing, making it difficult to be properly prepared.

These arguments were framed as reasons the Tribunal should have adjourned and, by implication, reasons the Tribunal decision should be quashed.

Respondent’s Main Evidence and Arguments

The Minister’s case was structured around legal constraints and futility:

• Mandatory visa criterion: cl 187.233 of Schedule 2 requires an approved nomination; without it, visa eligibility fails and the Tribunal is bound to affirm refusal.
• Lack of pleaded jurisdictional error: the judicial review grounds did not articulate an actual legal error, but largely recited merits and personal circumstances.
• Procedural fairness was provided: the Tribunal notified the Applicants, invited comment, granted one adjournment, and proceeded within its lawful discretion.
• Futility evidence: the Minister tendered material showing the employer nomination refusal had been affirmed, and also tendered evidence that the nominating company was deregistered, meaning it was no longer a legal person capable of making a nomination.

Core Dispute Points

1. The legal character of the Applicants’ complaint:

– Was it a legal complaint about jurisdictional error, or a merits complaint about hardship and unfairness?

1. Procedural fairness and adjournment:

– Did refusal of a further adjournment amount to denial of procedural fairness, given the notice and opportunity already provided?

1. Futility:

– Even if some error could be identified, would any remittal be pointless because the mandatory nomination requirement could not be satisfied, especially after deregistration?

1. The Court’s jurisdictional technicality:

– Whether the Applicants properly invoked the Court’s jurisdiction by seeking appropriate constitutional or statutory relief, such as mandamus, and how the Court dealt with that issue given self-representation.

---

Chapter 4: Statements in Affidavits

Affidavits in migration judicial review proceedings often perform a double role: they present facts and they attempt to shape the moral narrative of fairness. This case shows how those functions can diverge sharply from what the Court is legally allowed to decide.

How Each Side Constructed Its Narrative Through Affidavit Material

• The Applicants’ narrative construction was human and consequential: long residence, work history, children, reliance on employer assurances, and the practical injustice of being harmed by an employer’s failures.
• The Minister’s narrative construction was legal and structural: statutory requirements, mandatory criteria, lack of pleaded grounds, and corporate deregistration leading to incapacity.

The practical boundary between “facts that matter” and “facts that cannot move the legal needle” is central here. A migration applicant’s hardship can be real and severe, yet it may not be legally relevant to whether the Tribunal committed jurisdictional error.

Comparative Analysis: The Same Fact, Two Different Legal Meanings

Consider the Applicants’ claim: they needed more time because the employer received documents late and sought legal advice shortly before the hearing.

• In the Applicants’ framing, this fact supports the conclusion that they were not properly heard.
• In the Minister’s framing, this fact does not show denial of procedural fairness because the Tribunal provided notice, invited comment, and had already granted one adjournment, and because the core problem was not missing documents but the absence of an approved nomination.

The Court’s role was not to choose the more sympathetic narrative. It was to test whether the Applicants’ account, even if accepted, could establish a legally actionable wrong.

Strategic Intent Behind Procedural Directions on Affidavits

In a summary dismissal context, the Court’s focus is sharper than at a final hearing. Affidavit evidence must show a real question of law or fact that could reasonably be resolved in the applicant’s favour. Affidavit content that merely demonstrates hardship, without identifying a legal error, is strategically weak in judicial review litigation.

The Judge’s approach indicates a procedural intention to ensure self-represented parties are heard, but within the boundaries of the Court’s supervisory jurisdiction. That is why the Court addressed jurisdictional formality and amendment rather than allowing the matter to drift into a merits rehearing.

---

Chapter 5: Court Orders

Before final disposition, the Court’s procedural management reflected the structure of a review of a Registrar decision and the need to ensure the matter was legally competent.

Key procedural arrangements and directions included:

• Review of the Registrar’s exercise of delegated power proceeded as a hearing de novo under the applicable Rules, meaning the Judge reconsidered the summary dismissal question afresh.
• The Court ensured the Applicants had the Court Book and written submissions.
• The Court addressed the form of relief sought in the judicial review application and allowed amendment so the proceeding sought an appropriate writ, reflecting a focus on substance over technicality where justice required.

---

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

This hearing was not a theatrical contest of witnesses. It was a concentrated collision between human hardship and strict legal architecture.

Process Reconstruction: Live Restoration

The First Applicant appeared self-represented. An interpreter was available, though the First Applicant’s English was recorded as very good. The self-representation dynamic matters because it tends to produce grounds that are emotionally compelling but legally underdeveloped.

The Minister, represented by solicitors, advanced a structured submission: the Applicants had not identified jurisdictional error, the Tribunal applied mandatory criteria, and the case was futile.

The “cross-examination” in a summary dismissal hearing does not operate like a trial. The Court’s testing occurs through argument: the Court interrogates whether the pleaded case can possibly succeed, not whether the Applicants are truthful people.

Core Evidence Confrontation

The decisive evidentiary confrontation had two pillars:

1. The statutory criterion pillar:

– The Tribunal affirmed refusal because the nominating employer was not approved under cl 187.233. That criterion is mandatory.

1. The futility pillar:

– The Minister tendered evidence that the nominating company was deregistered, meaning it ceased to exist as a legal person.
– This transforms the practical question from “should the Tribunal reconsider” to “could reconsideration achieve any lawful outcome”.

The Applicants’ strongest emotional point was that they should not be punished for the employer’s failure. The Court treated that as a merits and policy argument, not a judicial review ground.

Judicial Reasoning

The Judge’s reasoning turned on the summary dismissal standard, the absence of any real question for trial, and the futility of relief.

“A critical examination of the available materials shows that there is no real question of law or fact to be determined that might reasonably be resolved at a final hearing in the applicants’ favour.”

This statement was determinative because it framed the Court’s task: not to decide the ultimate merits of migration eligibility, but to decide whether there was anything legally arguable to justify a full hearing.

The Court also anchored its approach in the principle that summary dismissal is cautious but real: the Court does not conduct a mini trial, but it must identify whether any genuine dispute exists.

---

Chapter 7: Final Judgment of the Court

The Court made orders that resolved the review application and confirmed the outcome against the Applicants.

• The judicial review application was amended to seek a writ of mandamus directed to the Tribunal, requiring it to determine the Applicants’ review according to law, ensuring the proceeding properly invoked the Court’s jurisdiction.
• The application for review of the Registrar’s decision was dismissed.
• Costs were ordered against the Applicants in the amount of AUD $1,500 for the review application, in addition to earlier costs fixed by the Registrar.

The Court’s reasoning also confirmed that the Registrar’s summary dismissal was correct because the Applicants’ case had no reasonable prospects and relief would be futile.

---

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This case is a concentrated illustration of a hard truth in Australian migration litigation: judicial review is not a fairness appeal. It is a supervisory jurisdiction directed to legal error, and it is constrained by mandatory visa criteria.

The jurisprudential value lies in how the Court combined three concepts into a single decisive pathway:

1. Mandatory criteria in the Migration Regulations.
2. Summary dismissal for no reasonable prospects under the Court’s statutory and rules framework.
3. Futility of relief where the factual foundation for any lawful outcome has disappeared, here through corporate deregistration.

It also contains an important procedural fairness lesson: not every refusal of an adjournment is denial of natural justice, particularly where a party had notice, an opportunity to respond, and the substantive barrier is legally immovable.

Judgment Points

Victory Point 1: The Court re-centred the dispute on legal power, not personal merit

The Applicants’ story was framed around diligence, work history, and family stakes. The Court treated those as genuine human circumstances but not as the legal question.

The legal question was whether the Tribunal committed jurisdictional error in affirming refusal when the nomination was not approved. The Court held the Tribunal applied the Regulations as correctly construed. In judicial review, correctness of outcome is not enough; it must be lawful process and lawful reasoning. The Court found no apparent legal error.

Practical lesson: A judicial review application must identify the legal flaw: misconstruction of a statute, failure to exercise jurisdiction, denial of procedural fairness, taking into account an irrelevant consideration, or failing to take into account a mandatory relevant consideration. Hardship alone does not meet that threshold.

Victory Point 2: Mandatory nomination approval operated as a legal gate that neither the Tribunal nor the Court could bypass

The Court held that cl 187.233 requires Ministerial approval of the nomination. Without that approval, the visa criteria fail. The Tribunal was bound to affirm refusal. This is the structural reality of certain visa subclasses: the Tribunal’s function is constrained by the legislative framework.

Practical lesson: When a visa criterion is mandatory and objectively not met, arguments about employment contracts, market salary rates, or personal suitability tend to be legally irrelevant in the review forum.

Victory Point 3: Procedural fairness claims must be tied to practical unfairness that could affect a lawful outcome

The Applicants argued the Tribunal denied natural justice by refusing a further adjournment needed to obtain legal advice and compile documents.

The Court held the Applicants had notice, were invited to comment on the absence of an approved nomination, were granted one adjournment, and were heard. The Court treated the additional adjournment request as a discretionary case-management issue rather than a denial of hearing.

In a procedural fairness claim, it is not enough to say “I wanted more time”. The applicant must show the process was unfair in a legally material way and that it could have affected the outcome. Where the outcome is controlled by an unapproved nomination, the Court viewed further time as incapable of changing the decisive legal fact.

Victory Point 4: The Court used the summary dismissal test as a disciplined filter, not as a premature trial

The Court adopted established summary dismissal principles, including caution and avoidance of a mini trial, but still required critical examination of the available materials.

“The determination of a summary dismissal application does not require a mini trial based upon incomplete evidence … A critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial is required.”

This statement mattered because it justified dismissal even in a context where the Applicants were self-represented. The Court acknowledged the seriousness of summary dismissal but held that the absence of a real question meant the Court should not consume further judicial resources on a case with no viable legal pathway.

Victory Point 5: Futility was not treated as a rhetorical point, but as an evidence-backed conclusion

The Minister tendered evidence that the nominating company had been deregistered. The Court accepted that a deregistered company ceases to exist as a legal person under the Corporations Act 2001 (Cth), which means it cannot nominate anyone. Even if an error were found and the matter remitted, the Tribunal would be forced to affirm refusal because the nominator could not legally provide a nomination.

This is a powerful “endgame” doctrine in litigation: courts are reluctant to grant relief that cannot produce any lawful practical result.

Victory Point 6: The Court protected fairness through amendment rather than allowing technical formality to defeat justice

The Applicants did not initially seek a writ that properly invoked jurisdiction in the required form. The Court ordered amendment to seek mandamus, noting the Applicants were unrepresented and the interests of justice favoured dispensing with non-compliance.

This shows an important balance: the Court will assist self-represented litigants to correct technical defects, but it will not allow that assistance to convert an unarguable case into an arguable one.

Victory Point 7: The Court clarified the boundary between Tribunal error and employer failure

The Applicants’ underlying complaint was that the employer misled them or mishandled the nomination process. The Court treated that as outside the judicial review function in this proceeding. The Court’s supervisory jurisdiction over the Tribunal does not become a forum to correct employer conduct.

Practical lesson: If an employer’s conduct is the true source of harm, the legal remedy may lie elsewhere, including employment, contract, consumer law, or regulatory complaints, rather than migration judicial review.

Victory Point 8: Costs operated as a final procedural reality check

The Court fixed costs of AUD $1,500 for the review application. Costs orders in summary dismissal contexts reinforce that courts treat unarguable proceedings as a serious misuse risk, even where litigants are unrepresented.

Practical lesson: Litigation strategy must account for cost exposure, especially where the core barrier is mandatory and objective.

Legal Basis

The key legal instruments and provisions the Court referred to in resolving evidentiary contradictions and determining outcome included:

• Federal Circuit and Family Court of Australia Act 2021 (Cth):
  • s 143, governing the no reasonable prospects threshold in the Court’s framework
  • ss 254 and 256, enabling delegation to Registrars and review of delegated powers
• Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth):
  • r 13.13(a), enabling summary dismissal
  • r 21.04(1), establishing the hearing de novo approach on review
• Migration Act 1958 (Cth):
  • s 476, judicial review jurisdictional gateway
• Migration Regulations 1994 (Cth):
  • Schedule 2, cl 187.233 and cl 187.233(3), requiring approved employer nomination for the visa pathway
• Corporations Act 2001 (Cth):
  • s 601AD, consequences of deregistration and the company no longer existing as a legal person

Evidence Chain

1. Visa application lodged relying on a specific employer nomination.
2. Delegate refused the visa.
3. Tribunal affirmed refusal because the employer was not approved under cl 187.233.
4. Judicial review filed, but grounds largely recited merits and hardship rather than jurisdictional error.
5. Minister sought summary dismissal for no reasonable prospects.
6. Minister tendered evidence supporting the nomination refusal context and the later corporate deregistration.
7. Court found no real question of law or fact and found remittal would be futile.

Judicial Original Quotation

“In this case the applicants were not eligible for the visa because the proposed employer was not approved by the Minister … In the absence of approval, the applicants do not meet the primary criteria to qualify for the visa … There was no error of law or fact … and there was no denial of procedural fairness …”

This passage was determinative because it combined the legal test and the factual conclusion into one coherent finding: the Tribunal’s reasoning aligned with the mandatory statutory framework, and procedural fairness was satisfied by notice and opportunity.

“The application for judicial review is also futile because the proposed employer has been deregistered … the person who made the nomination is no longer a legal person capable of nominating the first applicant because it is deregistered and has ceased to exist.”

This passage was determinative because it closed the door on practical relief. Even a successful technical argument would not produce a lawful, workable outcome if the nomination cannot legally exist.

Analysis of the Losing Party’s Failure

The Applicants failed not because their hardship was unbelievable, but because their case did not match the legal shape required for judicial review.

• The grounds did not identify jurisdictional error with particulars.
• The natural justice complaint did not overcome the fact that the decisive criterion was the absence of an approved nomination.
• The relief sought was practically unavailable in light of deregistration.
• The litigation strategy attempted to convert migration hardship into judicial review entitlement, but the supervisory jurisdiction does not operate on fairness alone.

Reference to Comparable Authorities

• Spencer v Commonwealth of Australia (2010) 241 CLR 118: Authority on summary dismissal principles, emphasising caution but permitting dismissal where no real question exists.
• Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473: Applied in articulating how courts should approach summary judgment without conducting a mini trial.
• Patel v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1017: Illustrates futility where the nominating entity is deregistered, meaning remittal cannot lawfully succeed.
• Singh v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 889: Authority supporting the Court’s capacity to order amendment to correct procedural defects and ensure proper invocation of jurisdiction.
• AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426: Summarises the summary dismissal test and the Court’s focus on whether there is a real question of law or fact warranting a trial.

Implications

1. If your visa pathway depends on an employer nomination, treat the employer’s nomination status as the foundation stone, not a supporting detail. A strong personal profile does not override a missing statutory criterion.

2. If you believe you were denied procedural fairness, focus on what you were prevented from saying or doing, and how that could realistically change the lawful outcome. Courts tend to require materiality, not mere dissatisfaction.

3. Self-representation is respected, but judicial review still requires legal framing. Even where a Court assists with technical amendment, it will not invent jurisdictional error where none is articulated.

4. Litigation risk includes futility risk. If a factual development makes the sought relief incapable of producing a lawful outcome, courts tend to end the case early, even if the applicant’s story is compelling.

5. Sometimes the true remedy lies outside migration review. If employer conduct caused the harm, consider alternative legal avenues that directly target that conduct, rather than asking a court to rewrite a migration criterion.

Q&A Session

Q1: Why could the Tribunal not simply approve the visa because the First Applicant was skilled and had worked for years?

Because the Subclass 187 pathway required an approved employer nomination under cl 187.233. The Tribunal’s role is to apply the law. If a mandatory criterion is not met, the Tribunal is bound to affirm refusal even where the applicant is otherwise suitable.

Q2: Is refusal of an adjournment always a denial of natural justice?

No. Procedural fairness depends on the overall opportunity to be heard. If the Tribunal gave notice, invited comment, granted an adjournment, and then proceeded, a further refusal may be viewed as lawful case management. A procedural fairness claim tends to require proof that the refusal prevented the party from presenting something materially capable of affecting the lawful outcome.

Q3: What does it mean that the case was “futile” because the company was deregistered?

A deregistered company ceases to exist as a legal person under s 601AD of the Corporations Act 2001 (Cth). If the nominating employer no longer exists, it cannot legally nominate an applicant. Even if the Tribunal reconsidered the matter, it would still be compelled to refuse because the statutory nomination foundation is absent.

---

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

• Case Subtype: Migration Law — Subclass 187 Regional Employer Nomination visa refusal; judicial review and summary dismissal; procedural fairness adjournment complaint; futility due to corporate deregistration
• Judgment Nature Definition: Final Judgment on review of Registrar decision; summary dismissal confirmed; orders as to amendment and costs

2. Self-examination of Core Statutory Elements

Execution Instruction Applied

The following tests are practical reference checkpoints that tend to be determinative in migration judicial review matters involving employer nomination pathways. They are for guidance only and must be applied to the specific facts, statutory settings, and evidence in any given case. Outcomes tend to turn on precise legislative criteria and the record of decision-making.

Core Test: Public Interest Criterion and Integrity Controls

• PIC 4020: Has the applicant provided bogus documents or information that is false or misleading in a material particular?
  • Identify the alleged document or information.
  • Assess materiality: whether it could influence the decision.
  • Trace the evidentiary chain: source document, verification, inconsistencies.
  • Examine procedural fairness: whether the applicant was put on notice of the concern and given a meaningful opportunity to respond.
  • Consider discretionary waiver mechanisms where applicable, including whether compassionate or compelling circumstances affecting relevant Australian persons tend to support discretion.

Core Test: Character Test

• Section 501 of the Migration Act 1958 (Cth): Does the person fail the character test?
  • Determine whether there is a substantial criminal record.
  • Assess whether aggregate sentences reach statutory thresholds, including total term of imprisonment.
  • Evaluate whether other character grounds are raised, including risk to the Australian community.
  • Consider procedural fairness and whether the applicant had a proper opportunity to respond to adverse material.
  • Consider how discretionary considerations, including hardship to family members, tend to be weighed where discretion exists.

Core Test: Judicial Review Focus in Migration Matters

When challenging a Tribunal decision under the Migration Act 1958 (Cth), an applicant must generally focus on jurisdictional error, not merits.

Key checkpoints:
– Did the Tribunal misconstrue or misapply a mandatory visa criterion in the Migration Regulations 1994 (Cth)?
– Did the Tribunal fail to exercise jurisdiction by refusing to consider a claim it was required to consider?
– Did the Tribunal deny procedural fairness by failing to provide notice of a critical issue or failing to provide a meaningful opportunity to respond?
– Did the Tribunal take into account an irrelevant consideration, or fail to take into account a mandatory relevant consideration?
– Was the Tribunal’s decision infected by legal unreasonableness in the relevant administrative law sense, assessed against the statutory task?

Case-Specific Mandatory Criterion Checkpoint: Approved Employer Nomination

For employer-nominated visas, a recurring hard checkpoint is whether the nomination is approved as required by the Regulations.

Practical steps:
1. Identify the precise legislative instrument and clause that requires approval, including whether it is framed as a mandatory criterion.
2. Identify who must approve the nomination and at what time the criterion must be met.
3. Confirm whether there is evidence of approval in the record.
4. If approval is absent, assess whether the Tribunal had any lawful power to waive or overlook the criterion. Many such criteria are non-waivable.

3. Equitable Remedies and Alternative Claims

Execution Instruction Applied

Where statutory migration avenues fail, parties often look for alternative legal pathways. The following are potential avenues that may be considered depending on the facts. They are not guaranteed outcomes and tend to require strong evidence.

Procedural Fairness as a Counter-attack Pathway

If a visa refusal is upheld and the applicant believes the process was unfair, procedural fairness arguments may be explored, but they tend to be strongest where:
– The decision-maker relied on adverse information not disclosed to the applicant.
– The applicant was not given a meaningful opportunity to respond to the decisive issue.
– The refusal of time or adjournment prevented presentation of evidence that could legally affect the outcome.

Risk warning:
– Procedural fairness arguments tend to be relatively high risk where the decisive criterion is objective and non-waivable, because courts often require materiality and practical unfairness capable of affecting a lawful decision.

Promissory or Proprietary Estoppel

If the harm arises from employer representations, an applicant may consider whether the employer made clear and unequivocal representations about sponsorship, nomination, or migration support, and whether the applicant relied to their detriment.

Elements to examine:
– Was there a clear promise or representation about sponsorship or continued employment?
– Did the applicant act in detrimental reliance, such as continued work at below-market options, relocation, or foregoing other opportunities?
– Would it be unconscionable for the employer to resile from the representation?

Risk warning:
– These claims tend to be difficult where the promise is effectively a promise about a statutory outcome the promisor cannot guarantee. Courts tend to be cautious where reliance is placed on migration outcomes controlled by government decision-making.

Unjust Enrichment and Constructive Trust Analogies

Where an employer receives a benefit at the expense of the worker, including labour, fees, or payments linked to migration sponsorship, unjust enrichment principles may be considered.

Elements to examine:
– Was a benefit received by the other party?
– Was the benefit at the applicant’s expense?
– Is it against conscience for the other party to retain the benefit without restitution?

Risk warning:
– These pathways tend to depend on clear proof of payment or quantifiable benefit. They also tend to sit outside the migration proceeding and require separate civil litigation pathways.

Ancillary Complaints and Regulatory Avenues

Depending on the employer’s conduct, other avenues may be explored:
– Fair Work Act pathways, where misrepresentation, underpayment, or coercion is involved.
– Regulatory complaints where sponsorship representations were misleading in trade or commerce, assessed under applicable consumer law frameworks.
– Corporate regulatory complaints if conduct suggests improper corporate behaviour.

Risk warning:
– These options tend to require careful jurisdiction selection, limitation period awareness, and evidence preservation.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

• Judicial review filing limits and procedural compliance requirements under the Court’s rules and the Migration Act 1958 (Cth) tend to be strict.
• Summary dismissal threshold: proceedings with no reasonable prospects may be terminated early under the Court’s statutory and rules framework.
• Employer nomination requirement: in relevant visa subclasses, an approved nomination is often a hard statutory threshold that cannot be waived.

Exceptional Channels

• Where a procedural defect exists in the form of relief sought, courts may allow amendment to ensure proper invocation of jurisdiction, particularly for self-represented litigants, where this tends to serve the interests of justice.
• Where time limits are missed, relief may sometimes be available depending on the statutory scheme and the nature of the error, including administrative error that could amount to jurisdictional error in the relevant sense.

Suggestion:
– Do not abandon a potential claim simply because a standard requirement appears unmet. Compare your factual situation carefully against any statutory discretions, exceptions, and procedural correction mechanisms. These mechanisms often determine whether litigation can be commenced or maintained, even if ultimate success remains uncertain.

5. Guidelines for Judicial and Legal Citation

Citation Angle

This case tends to be useful in submissions involving:
– Summary dismissal applications in migration judicial review matters.
– Futility arguments where remittal cannot produce a lawful outcome.
– Employer nomination pathways where mandatory criteria under the Migration Regulations 1994 (Cth) are not met.
– The Court’s approach to assisting self-represented litigants by permitting amendment while still applying strict legal thresholds.

Citation Method

• As Positive Support:
  • Where your matter involves a mandatory criterion not met and the Tribunal was bound to decide accordingly, this authority tends to support an argument that judicial review has no reasonable prospects where no jurisdictional error is pleaded and relief would be futile.
  • Where a nominating entity has been deregistered, this authority tends to support futility arguments grounded in corporate legal personality.
• As a Distinguishing Reference:
  • If the opposing party cites this authority, emphasise any unique features in your matter, such as a genuinely arguable jurisdictional error, a material procedural fairness breach involving undisclosed adverse information, or a live capacity for nomination approval that remains legally possible.

Anonymisation Rule

In discussing factual scenarios, use procedural titles such as Applicant and Respondent. Avoid using real party names beyond the formal case citation.

---

Conclusion

This judgment distils a practical rule for migration litigants: judicial review is a legal error jurisdiction, and it cannot manufacture a pathway around mandatory statutory criteria or an impossible factual foundation. Where an employer nomination is unapproved and the nominating company ceases to exist, the law tends to treat remittal as legally pointless.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

---

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 715), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

---

Original Case File:

👉 Can’t see the full document?
Click here to download the original judgment document.