Patel v Minister for Immigration and Citizenship - Migration Visa Appeal

Original Word Document (87.7 KB) Federal Court of Australia

Patel v Minister for Immigration and Citizenship [2026] FCA 346

| Appeal from: | Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 913 |
| | |
| File number(s): | NSD 1035 of 2022 |
| | |
| Judgment of: | LEE J |
| | |
| Date of judgment: | 24 March 2026 |
| | |
| Catchwords: | MIGRATION – judicial review – application dismissed in the Federal Circuit Court of Australia – appeal from primary judge’s decision – refusal of Employer Nomination (subclass 186) visa to applicants – where employer’s nomination was refused – where requirements of cl 186.223 of Sch 2 to the Migration Regulations 1994 (Cth) were not satisfied |
| | |
| Legislation: | Federal Court of Australia Act 1976 (Cth) Pt VB

Migration Act 1958 (Cth) ss 36, 65, 359A(1)

Migration Regulations 1994 (Cth) Sch 2 cl 186.223 |
| | |
| Cases cited: | Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21

Patel v Minister for Home Affairs [2019] FCA 1228

Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 913

Shah v Minister for Immigration and Citizenship [2026] FCA 226 |
| | |
| Division: | General Division |
| | |
| Registry: | New South Wales |
| | |
| National Practice Area: | Administrative and Constitutional Law and Human Rights |
| | |
| Number of paragraphs: | 21 |
| | |
| Date of hearing: | 24 March 2026 |
| | |
| Solicitor for the appellants: | The first appellant appeared in person |
| | |
| Solicitor for the first respondent: | Mr Edagbami of Clayton Utz |
| | |
| Solicitor for the second respondent: | The second respondent entered a submitting notice, save as to costs |
ORDERS

| | | NSD 1035 of 2022 |
| | | |
| BETWEEN: | MRS DIPABEN YOGESHKUMAR PATEL

First Appellant

MR YOGESHKUMAR RAMLAL PATEL

Second Appellant

MR ARYA YOGESHKUMAR PATEL

Third Appellant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | LEE J |
| DATE OF ORDER: | 24 MARCH 2026 |
THE COURT ORDERS THAT:

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

2. The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INtroduction

1 This is an appeal from a judgment of the Federal Circuit and Family Court of Australia given on 4 October 2022: Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 913 (PJ). In that judgment, the primary judge dismissed the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).

2 The Tribunal’s decision, which was made almost five years ago in September 2021, affirmed a decision of a delegate of the first respondent (Minister) made on 2 October 2019, which refused to grant the first appellant an Employer Nomination (Permanent) (Class EN) Subclass 186 visa under s 65 of the Migration Act 1958 (Cth) (Act).

3 The second and third appellants are the husband and child of the first appellant, and their visa applications were entirely dependent on the success of the first appellant’s application. Before the Court is an affidavit sworn by the first appellant on 13 November 2022 in which she deposes to the relevant background to the appeal, and requests this court to:

Consider my circumstances and mistake made by the Honourable Federal Circuit Court judge and Administrative Appeals Tribunal and allow my appeal to be heard and make a decision in my favour.

4 After the filing of the notice of appeal dated 24 November 2022, a Registrar of the Court made several directions, which included the appellants file and serve a written outline of submissions no later than 10 days before the hearing date, which has been fixed for today. No such written submissions have been filed, and the appellants remain unrepresented at the hearing before me. Although an interpreter had been booked for today, it was evident that the first appellant understood and could communicate well in English, and the services of the interpreter were therefore not required.

5 When invited to make submissions concerning the matter, the first appellant made an adjournment application. That application was not supported by any evidence but relied on what properly could be regarded as three contentions: first, that she needed more time to deal with the matter, secondly, that she wished to obtain legal advice, and, thirdly, that her son, the third appellant, needs seven months more experience following his registration as a nurse in order to apply for permanent residence.

6 This matter has already been very delayed and has now been in the Federal Court for a period in excess of four years. Why it has been delayed so long is a matter that does not need further explanation in this judgment, but, like any other litigation in the court, it is required to be dealt with pursuant to the dictates of Part VB of the Federal Court of Australia Act 1976 (Cth).

7 There is no reason why the appellants should have delayed taking any steps necessary for them to be ready for today’s hearing, and this is an infirm basis upon which to seek an adjournment. Although I understand what has been put to me from the bar table concerning the position of the third appellant, that also is not a basis upon which to adjourn the determination of this appeal, particularly when one considers the nature of the underlying appeal, a matter to which I will now turn.

B    Background

8 On 24 September 2018, the first appellant applied for the visa. A mandatory criterion for the visa was that, at the time of decision, the first appellant was the subject of an approved nomination under cl 186.223 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations).

9 The nomination application made by the first appellant’s prospective employer, AJ Contractors Australia Pty Ltd, was refused by the Minister. Although the employer sought merits review of the refusal, the Tribunal determined on 17 May 2021 that it did not have power to review the decision because the employer company had been deregistered. Consequently, the nominated position was never approved.

10 On 26 August 2021, the Tribunal issued an invitation to the first appellant pursuant to s 359A of the Act to comment on the fact that her sponsor’s nomination had been refused and the position was not approved. Five days later, the first appellant provided a written response, acknowledging that the employer did not meet the requirements to be a nominator and stating that the refusal was “out of her control”.

11 After the first appellant’s representative requested the Tribunal to cancel the hearing and make its decision on the papers, the Tribunal affirmed the Minister’s refusal decision on 22 September 2021. The Tribunal found that the first appellant did not satisfy cl 186.223 of Sch 2 of the Regulations as there was no approved nomination and no evidence of any other approved nomination.

C    CONSIDERATION of the substantive appeal

C.1    The Primary Judge’s Decision

12 On 12 October 2021, the appellants applied to the Federal Circuit and Family Court for judicial review. The single ground of review was that the Tribunal had not acted in the best interest of the applicants and alleged that there was a “procedural fairness issue”.

13 The primary judge (PJ at [18]) accurately set out the Court’s task in judicial review by reference to Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 (at 25 [17] per Allsop CJ, Besanko and O’Callaghan JJ).

14 The primary judge then proceeded to dismiss the application, observing that the Tribunal had no choice but to affirm the decision under review because there was no approved employer nominator. The primary judge noted that it would be futile to remit the matter to the Tribunal because it would be obliged to make the exact same decision.

C.2    Grounds of Appeal

15 As noted above, a notice of appeal was filed in 2022. In that notice of appeal, the appellants advance three grounds of appeal: f irst, the primary judge erred in dismissing the application for judicial review without considering the facts presented at the Tribunal hearing; s econdly, the primary judge made a legal error by not properly applying the provisions of s 36 of the Act; and thirdly, the Tribunal erred by not applying s 65 of the Act.

C.3    Consideration

16 The relationship between the employer’s nomination application and the first appellant’s visa application is “interdependent”, as observed by Cheeseman J in Shah v Minister for Immigration and Citizenship [2026] FCA 226 (at [9]). The first appellant could not satisfy all the criteria in cl 186.223 of Sch 2 of the Regulations unless she was the subject of an approved nomination. The fate of the nomination application was fatal to her visa application and because the second and third appellants relied on the first appellant satisfying this criterion, their applications also necessarily failed.

17 Once the nomination fails, that is, in effect, the end of the matter and the appeal is “without merit and is futile”: see Patel v Minister for Home Affairs [2019] FCA 1228 (at [9] per Colvin J). Remitting the matter to the Tribunal would serve no utility, as it would be bound to reach the same conclusion.

18 In respect of Ground One, the Tribunal had regard to all relevant facts with respect to the mandatory condition for the grant of the visa, being whether cl 186.223 of Sch 2 of the Regulations was met. The primary judge correctly identified that no other facts could overcome the absence of an approved nomination, and the Tribunal made the only decision available to it.

19 In respect of the Ground Two, s 36 of the Act prescribes the criteria for protection visas, and not the class of visa for which the first appellant applied. There could be no error in the primary judge failing to apply this section.

20 In respect of the Ground Three, s 65 of the Act requires the Minister to grant a visa if satisfied that the prescribed criteria have been satisfied. It seems hardly necessary to add that because the criteria were not satisfied due to the lack of approved nomination, the Tribunal was statutorily required to refuse the visa.

D    CONCLUSION

21 As can be seen, none of the three grounds identified have any merit. It is necessary to bring this long-standing appeal to a conclusion, and it must be dismissed with costs.

| I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. |
Associate:

Dated: 27 March 2026

Top