Patel v Minister for Immigration and Citizenship - Migration Appeal

Original Word Document (94.8 KB) Federal Court of Australia

Patel v Minister for Immigration and Citizenship [2026] FCA 340

| Appeal from: | Application for extension of time and leave to appeal: Patel v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 368 |
| | |
| File number(s): | VID 550 of 2024 |
| | |
| Judgment of: | HESPE J |
| | |
| Date of judgment: | 25 March 2026 |
| | |
| Catchwords: | MIGRATION – application for extension of time and for leave to appeal- where applicants refused Employer Nomination Scheme (subclass 186) visas – where nomination application by first applicant’s employer refused – where nomination refusal not under review – where Administrative Appeals Tribunal affirmed refusal to grant visas based on the lack of approved nomination – whether jurisdictional error – whether futile to grant extension of time and leave to appeal |
| | |
| Legislation: | Corporations Act 2001 (Cth) s 601AD(1)

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Migration Act 1958 (Cth) ss 359A, 359C, 379G

Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), 13.06(1)(c), 17.05

Federal Court Rules 2011 (Cth) rr 35.13, 35.14(3)(c)(ii)

Migration Regulations 1994 (Cth) Sch 2 cll 186.223, 186.311(a), 187.233 |
| | |
| Cases cited: | EPH17 v Minister for Immigration and Border Protection [2019] FCA 824; (2019) 166 ALD 47

Jarrett v Westpac Banking Corporation [1999] FCA 425

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717; (2023) 298 FCR 400

Pallas v Minister for Home Affairs [2019] FCAFC 149

Patel v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 368

Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1170

Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267

Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 |
| | |
| Division: | General Division |
| | |
| Registry: | Victoria |
| | |
| National Practice Area: | Administrative and Constitutional Law and Human Rights |
| | |
| Number of paragraphs: | 51 |
| | |
| Date of hearing: | 10 March 2026 |
| | |
| Counsel for the Applicants: | The First Applicant appeared via audiovisual link on behalf of the Applicants |
| | |
| Counsel for the First Respondent: | Mr J Slankard of Sparke Helmore Lawyers |
| | |
| Solicitor for the First Respondent: | Sparke Helmore Lawyers |
| | |
| Counsel for the Second Respondent: | The Second Respondent filed a submitting notice, save as to costs |
ORDERS

| | | VID 550 of 2024 |
| | | |
| BETWEEN: | DHARMESH LALLUBHAI PATEL

First Applicant

SANGEETABAHEN DHARMESH PATEL

Second Applicant

NIKUNJ DHARMESH

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

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | HESPE J |
| DATE OF ORDER: | 25 March 2026 |
THE COURT ORDERS THAT:

1. The name of the First Respondent is amended to ‘Minister for Immigration and Citizenship’.

2. The name of the Second Respondent is amended to ‘Administrative Review Tribunal’.

3. The oral application for an adjournment made by the First Applicant at the hearing on 10 March 2026 is refused.

4. The application for extension of time and leave to appeal is dismissed.

5. The First and Second Applicants pay the costs of the First Respondent to be taxed if not agreed.

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

REASONS FOR JUDGMENT

HESPE J

Introduction

1 This is an application for an extension of time within which to seek leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA): Patel v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 368 (primary judgment or PJ). The primary judge refused an interlocutory application to set aside earlier orders made by the primary judge which dismissed, for non-appearance, an application for review of a decision made by a Judicial Registrar of the FCFCOA. The decision of the Judicial Registrar, in turn, had summarily dismissed the applicants’ application for judicial review on the basis that it had no reasonable prospect of success: Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1170 (Registrar’s d ecision or RD).

2 The impugned decision the subject of the original judicial review application was made by the former Administrative Appeals Tribunal (second respondent), affirming a decision made by a delegate of the Minister for Home Affairs (first respondent) to refuse to grant the first applicant an Employer Nomination Scheme (Class EN) (subclass 186) (Temporary Residence Transition) visa.

3 The primary judge’s decision to refuse to set aside her Honour’s orders or reinstate the application was made pursuant to r 17.05 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules), and because that decision was interlocutory in nature, the applicants require this Court’s leave in order to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

4 The primary judgment was delivered on 26 April 2024, and pursuant to r 35.13 of the Federal Court Rules 2011 (Cth), the applicants had 14 days to seek leave to appeal from that interlocutory decision, which period expired on 10 May 2024. The application to this Court was made on 6 June 2024 and outside of the time limit.

5 The draft notice of appeal and the application for an extension of time and for leave to appeal each contain the same two grounds:

1.    The Federal Circuit Court failed to find that the Administrative Appeals Tribunal fell in jurisdictional error in determining without a logical and probative basis that all the evidence upon which his claim was based was false.

2.    The Federal Circuit Court failed to find that the Administrative Appeals Tribunal fell in misapprehending the evidence and then use its erroneous findings about the evidence.

6 An affidavit affirmed or sworn (it was not clear which) by the first applicant was filed on the same day, annexing the orders and reasons of the primary judge, but providing no explanation for the delay in filing the application for leave to appeal (as required by r 35.14(3)(c)(ii) of the Rules). The relief sought in the draft notice of appeal was that the orders of the primary judge be set aside and the matter remitted to the Tribunal for redetermination according to law, with costs.

7 The applicants were legally represented before the primary judge, and although the present application was lodged for filing by those same solicitors on the applicants’ behalf, those solicitors never went on the record as the applicants’ legal representatives in this Court. The first applicant appeared at the hearing before this Court unrepresented but assisted by a Hindi interpreter, both of whom appeared via audiovisual link at their request.

8 For the following reasons, the application for an extension of time and for leave to appeal is dismissed.

Background

9 The first applicant is a citizen of India and the husband of the second applicant, who are together the parents of the third applicant.

10 On 20 March 2018, the first applicant applied for the visa, with the second and third applicants included in that application as secondary applicants on the basis that they are members of the first applicant’s family unit (visa application). The basis of the visa application was that the first applicant had at that time been nominated for the position of Market Research Analyst by his then employer, ANE Australia Pty Ltd.

11 On 30 April 2019, ANE Australia’s nomination application in respect of the first applicant was refused by a delegate of the Minister.

12 On 14 June 2019, a delegate of the Minister refused the visa application, on the basis that the first applicant did not meet cl 186.223 of Sch 2 to the Migration Regulations 1994 (Cth) as he was not the subject of an approved nomination at the time of the delegate’s decision. Clause 186.223 relevantly provided (emphasis added):

186.22—Criteria for Temporary Residence Transition stream

…

186.223

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

(a)    nominated in an application for approval that:

(i)    identifies the applicant in relation to the position; and

(ii)    is made in relation to a visa in a Temporary Residence Transition stream; and

…

(2) The Minister has approved the nomination.

(3)    The nomination has not subsequently been withdrawn.

…

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

13 On 28 June 2019, the applicants applied to the Tribunal for merits review of the delegate’s decision to refuse the visa application. Separately, ANE Australia had also applied to the Tribunal for merits review of the decision to refuse its nomination application.

14 On 1 April 2022, the Tribunal made a decision that it had no jurisdiction to review the decision to refuse ANE Australia’s nomination application because ANE Australia had been deregistered as a company on 16 January 2022.

15 On 2 September 2022, the Tribunal wrote to the applicants, via their migration agent representative, inviting the applicants to attend a hearing on 29 September 2022.

16 On 7 September 2022, the Tribunal wrote to the applicants via their representative to invite them, pursuant to s 359A of the Migration A ct 1958 (Cth), to respond to or comment on information held by the Tribunal that was potentially adverse to their case (s 359A letter). The adverse information was that there was at that time no approved nomination of the first applicant by ANE Australia and the refusal of ANE Australia’s nomination application was not under review by the Tribunal.

17 In the s 359A letter, the Tribunal advised that subject to any comments or response from the applicants, this information indicated that: 1) the first applicant did not meet cl 186.223 of Sch 2 to the Regulations and this would be a reason for the Tribunal to affirm the delegate’s decision to refuse the visa application, 2) the second and third applicants “are family unit members of a person who holds a subclass 186 visa” (it would appear the letter erroneously omitted the word “not” before “family unit members” here), and 3) there was no evidence that the applicants met the criteria applicable to streams of the subclass 186 visa other than the Temporary Residence Transition stream for which the applicants applied. The Tribunal requested that the applicants respond to this information or seek an extension of time by which to do so, by 21 September 2022. The Tribunal advised that a failure to do so would cause the hearing scheduled for 29 September to be cancelled, the applicants to lose their entitlement to a hearing at all, and the Tribunal to potentially proceed to make its decision on the available evidence without seeking further comment from the applicants.

18 On 21 September 2022, the Tribunal received a ‘Change of Contact Details’ form from the first applicant, withdrawing his prior authorisation for his migration agent to act as his representative or to receive correspondence on his behalf, and requesting the Tribunal to provide all correspondence to the first applicant directly. The first applicant did not acknowledge nor address the issues raised in the Tribunal’s s 359A letter.

19 On 26 September 2022, the Tribunal wrote directly to the first applicant to advise that the applicants had lost their entitlement to a hearing and the hearing on 29 September was cancelled because no response has been received to the s 359A letter. The Tribunal nonetheless invited the applicants to provide information or submissions in writing by 29 September 2022. No response from the applicants was received by that date.

The Tribunal’s reasons

20 On 3 October 2022, the Tribunal gave notice to the first applicant of its decision, made on 30 September 2022, to affirm the delegate’s decision to refuse to grant the visa to the applicants.

21 The basis for the Tribunal’s decision was that the first applicant was not the subject of an approved nomination by ANE Australia and thus cannot satisfy cl 186.223(2) of Sch 2 to the Regulations in relation to the Temporary Residence Transition stream of the visa: Tribunal’s Reasons (TR) at [26], [30]. The Tribunal observed that even if the first applicant was the subject of an approved nomination by another employer (no evidence of which was provided, in any case), he still would not be able to satisfy cl 186.223 in respect of the present visa application because the nominated ‘position’ to which that clause refers is a position that exists at the time at which the sponsoring employer submits the nomination application: TR [27]–[29]. The Tribunal observed that the first applicant had made no claims in respect of other streams within the subclass 186 visa.

22 The Tribunal also considered whether the first applicant’s provision of the form removing the migration agent as the applicants’ authorised representative constituted a ‘response’ to the s 359A letter. The Tribunal determined that the form for removal did not constitute a response for the purposes of s 359C of the Act. Accordingly, the Tribunal determined that the applicants were not entitled to appear before the Tribunal and it was able to make its decision on the papers: TR [18].

23 Because the first applicant was not a person holding a subclass 186 visa, the Tribunal considered that the decision to refuse to grant the visa to the second and third applicants must also be affirmed: TR [30]–[31].

24 On 1 November 2022, the applicants filed their application in the FCFCOA for judicial review of the Tribunal’s decision.

The Registrar’s decision

25 On 12 December 2023, the Judicial Registrar summarily dismissed the application for judicial review pursuant to r 13.13(a) of the FCFCOA Rules.

26 The Judicial Registrar determined that the Tribunal’s decision was affected by jurisdictional error, relating to the way the Tribunal corresponded with the applicants: RD [1]. In the applicants’ review application lodged with the Tribunal, their former migration agent was appointed as their “representative”, but the agent was not in the form or subsequently explicitly appointed as the applicants’ “authorised recipient” to whom correspondence should be exclusively sent pursuant to s 379G of the Act: RD [16]–[17]. The Judicial Registrar considered that the Tribunal, when sending its s 359A letter to the applicants’ representative, did not comply with its obligation under s 359A(1) of the Act, and because the applicants had not therefore failed to respond to a validly issued s 359A notification, they remained entitled to a hearing before the Tribunal: RD [18]. It followed that the Tribunal’s breach of s 359A(1) of the Act was a jurisdictional error, and one which was not required to be material to invalidate the Tribunal’s decision: RD [19], citing Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717; (2023) 298 FCR 400 at 95.

27 Nonetheless, the Judicial Registrar was satisfied that the applicants had no reasonable prospect of successfully prosecuting the judicial review application, and that remitting the matter to the Tribunal would be futile because there is no way the first applicant could meet the criteria for the visa in cl 186.223 of Sch 2 to the Regulations: RD [22]–[26]. That result was inevitable because the nomination by ANE Australia was refused, and ANE Australia was deregistered and had not challenged the Tribunal’s no jurisdiction decision, which circumstances persisted at the time of the Registrar’s decision: RD [27]. The first applicant could never meet the criterion in cl 186.223 in respect of the visa application, which was accordingly “doomed to fail”: RD [28].

28 On 3 January 2024, the applicants filed an interlocutory application for review of the Registrar’s decision in the FCFCOA: PJ [40].

The primary judgment

29 The applicants failed to appear (by themselves or by their representative) at the hearing of the interlocutory application which was listed before the primary judge on 24 January 2024: PJ [41]. Following a brief adjournment, the primary judge ordered on 24 January 2024 that the interlocutory application for review be dismissed for non-appearance pursuant to r 13.06(1)(c) of the FCFCOA Rules: PJ [45].

30 On 23 February 2024, the applicants filed an interlocutory application seeking to have those orders set aside, and to reinstate their application for review of the Registrar’s decision, pursuant to r 17.05(2)(a) of the FCFCOA Rules: PJ [48]. That reinstatement application was heard on 7 March 2024.

31 The primary judge refused the application for reinstatement on the basis that it was not in the interests of the administration of justice to grant reinstatement because the substantive judicial review application did not have reasonable prospects of success: PJ [64], [75].

32 The primary judge considered that even if there was an error made by the Tribunal amounting to jurisdictional error, there would be no utility in remitting the matter to the Tribunal because “where the nomination was refused and that refusal remains undisturbed, the applicant does not and cannot meet the requirements of cl 186.233”: PJ [67]–[68]. The primary judge also observed that the visa criteria could not be satisfied even in the event that the applicants secured a different nomination (at PJ [70]), following Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267 at [88]–89. Although Singh concerned the criteria in cl 187.233 of Sch 2 to the Regulations, the primary judge considered the reasoning to be equally applicable to “cl 186.233” which is relevantly the same: PJ [71].

33 On 19 June 2024, the applicants’ application for an extension of time and for leave to appeal was accepted for filing in this Court.

Consideration

Application for adjournment

34 At the commencement of the hearing before this Court on 10 March 2026, the first applicant requested an adjournment of the hearing for six to eight weeks, on two bases: first, that he needed more time to obtain legal advice, and second, that he had been and was still unwell. The applicants had provided no notice of the request for an adjournment, or the purported bases for it, prior to the hearing.

35 The first applicant also stated that the Department of Immigration had “made a mistake” and granted him a bridging visa C rather than a bridging visa A, and that he had applied for a new bridging visa A but this was not resolved. The relevance of this to the current proceedings was not explained.

36 The Court adjourned briefly to allow the first applicant a short time to provide to Chambers any medical or other evidence on which he relied in support of his request for an adjournment. The first applicant emailed to Chambers scans or images of seven pages, containing: three separate medical certificates dated 1 February, 4 February, and 6 March 2026; a one-page referral letter dated 1 February 2026; and a three-page hospital discharge summary dated 2 February 2026. The referral letter and discharge summary indicate that the first applicant attended hospital on 1 February 2026 presenting with abdominal pain and vomiting, and was provided with a discharge summary on 2 February noting a conclusion of “epiploic appendagitis”. The medical certificates, together, stated no more than that the first applicant was “suffering from a medical condition” and was “unfit for work” from 1 February to 6 February 2026 and for the one day on 6 March 2026. The first applicant explained to the Court that the reason why the medical certificate of 6 March did not specify the reason why the applicant was “unfit for work” was because he did not visit the doctor in person but had procured the medical certificate dated 6 March 2026 via a telehealth appointment. The first applicant stated that he was still taking medication related to his medical episode in February.

37 The Court informed the first applicant that on the basis of the material before it, there was no basis for an adjournment. The first applicant was then invited to make any submissions on the substantive application.

38 The first applicant again expressed his wish for an adjournment in order to seek legal assistance but said if there is no option for an adjournment, he did not have anything further to say and he would abide by the Court’s decision.

39 The Court was satisfied that the medical evidence does not provide a satisfactory basis to grant an adjournment of the hearing. The medical evidence did not provide an explanation for why the first applicant was unable to prepare his case or make submissions to the Court. The applicants had been on notice of the hearing since 22 December 2025 and a timetable had been set for them to file written submissions pursuant to directions made by a Registrar of the Court on 15 July 2024. At no point prior to the hearing had the applicants advised the Court of any reason why they would not be able to comply with those directions.

40 The applicants did not provide any explanation for why they had not taken any steps towards obtaining legal assistance in the time since filing the application for an extension of time and for leave to appeal on 6 June 2024. While litigants in person face substantial difficulties in prosecuting their claims, and legal representation is highly desirable for the due administration of justice, lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at 19; EPH17 v Minister for Immigration and Border Protection [2019] FCA 824; (2019) 166 ALD 47 at 18; Jarrett v Westpac Banking Corporation [1999] FCA 425 at 6; Pallas v Minister for Home Affairs [2019] FCAFC 149 at 42(a).

41 For those reasons, the applicants’ oral application for an adjournment was refused.

Application for an extension of time and leave to appeal

42 The applicants require leave of the Court to appeal from the primary judgment and also require an extension of time within which to do so. The overriding consideration for the Court in determining whether to grant such leave and an extension of time is the interests of the administration of justice.

43 The grounds contained in the draft notice of appeal do not particularise what findings of the Tribunal are sought to be impugned or what ‘evidence’ it is said to have misapprehended or found to be false: as explained, the applicants provided no evidence or written materials to the Tribunal. The applicants have provided no evidence or submissions to this Court, in writing or orally, expanding on those grounds of appeal.

44 Having reviewed the Tribunal’s decision, the Court is satisfied that it would be futile for the applicants to be granted an extension of time and leave to appeal because it is not possible for the applicants to meet the requisite criteria for the grant of the visa. The only decision open to the Tribunal was, and would be on remittal, to affirm the delegate’s decision to refuse to grant the applicants the visa.

45 The first applicant did not meet the criteria in cl 186.223(2) of Sch 2 to the Regulations because the nomination by ANE Australia, which was the basis for the visa application, was not approved, and that decision is not the subject of any valid or ongoing review proceedings. As Mortimer J stated in Singh at 90, the criterion in cl 187.233 of Sch 2 to the Regulations can only be satisfied by reference to “a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate)”. That reasoning applies equally to the criterion in cl 186.223. Upon ANE Australia being deregistered on 16 January 2022, it ceased to exist by operation of s 601AD(1) of the Corporations Act 2001 (Cth). The specific nomination of the first applicant by ANE Australia will undoubtedly continue to not be approved, such that he cannot meet cl 186.223(2) in respect of the visa application.

46 Because the first applicant cannot satisfy the criteria for a subclass 186 visa in respect of the visa application lodged on 20 March 2018, the second and third applicants also cannot satisfy the criteria in cl 186.311(a) of Sch 2 to the Regulations (now contained in cl 186.311(2)(a)) for the grant of the visa to them. They are not members of the family unit of a person who holds a subclass 186 visa.

47 It would therefore be futile for the matter to be remitted to the Tribunal, even if the Tribunal’s decision is affected by jurisdictional error.

48 For these reasons, the Court is satisfied that it is not in the interests of the administration of justice for the applicants to be granted leave to appeal against the primary judgment, or an extension of time within which to do so. The application must be dismissed.

Conclusion

49 The application for an adjournment of the hearing is refused.

50 The application for an extension of time and leave to appeal is dismissed.

51 The First and Second Applicants are to pay the costs of the First Respondent to be taxed if not agreed.

| I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe. |
Associate:

Dated: 25 March 2026

Top