Patel v Minister for Immigration and Citizenship - Migration Visa Appeal

Original Word Document (90.3 KB) Federal Court of Australia

Patel v Minister for Immigration and Citizenship [2026] FCA 348

| Appeal from: | Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 880 |
| | |
| File number(s): | NSD 973 of 2022 |
| | |
| Judgment of: | LEE J |
| | |
| Date of judgment: | 23 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 65, 359A

Migration Regulations 1994 (Cth) Sch 2, cll 186.223, 187.233 |
| | |
| Cases cited: | Kaur v Minister for Immigration and Border Protection [2018] FCA 779

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

Patel v Minister for Immigration, Citizenship and Multicultural Affair s [2022] FedCFamC2G 880

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 |
| | |
| Division: | General Division |
| | |
| Registry: | New South Wales |
| | |
| National Practice Area: | Administrative and Constitutional Law and Human Rights |
| | |
| Number of paragraphs: | 15 |
| | |
| Date of hearing: | 23 March 2026 |
| | |
| Solicitor for the appellants: | The first appellant appeared in person |
| | |
| Solicitor for the first respondent: | Mr Z McCaughan of Mills Oakley Lawyers |
| | |
| Solicitor for the second respondent: | The second respondent entered a submitting notice, save as to costs |

ORDERS

| | | NSD 973 of 2022 |
| | | |
| BETWEEN: | PRADEEP PRAVIN PATEL

First Appellant

MITTALBEN PRADEEP PATEL

Second Appellant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent | |

| order made by: | LEE J |
| DATE OF ORDER: | 23 MARCH 2026 |
THE COURT ORDERS THAT:

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

2. The third and fourth appellants are to be removed as parties from the proceedings.

3. 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 appeal was filed on 14 November 2022 and named four appellants being Mr and Mrs Patel and their two children. The two children, formerly the third and fourth appellants, are now both Australian citizens. In Mr Patel’s correspondence to the Court on 21 February 2026, he indicated his intention to withdraw them as parties to the proceedings. Although no notice of discontinuance has been filed prior to today’s hearing, it is appropriate to make orders removing them as parties and dispensing with the need to file a new process to reflect this change.

2 The matter had come before a Registrar of the Court on 15 November 2022, at which time directions were made for the filing of an appeal book and submissions, these orders were communicated to the first appellant.

3 No written submissions have been filed in accordance with the directions made by the Registrar on 15 November 2022. Like before the primary judge in Patel v Minister for Immigration, Citizenship and Multicultural Affair s [2022] FedCFamC2G 880 (PJ), the first appellant seeks to appear for himself and his wife, but he is unrepresented. Notwithstanding the absence of a written submission, Mr Patel has assisted me today with some oral submissions to which I will shortly come.

B    BACKGROUND

4 It is unnecessary to set out at any length the background to the matter or what occurred before the Administrative Appeals Tribunal (Tribunal). That background is set out in the reasons of the primary judgement (PJ at [1]–[11]).

5 In short compass, almost nine years ago the applicants applied for an Employee Nomination (Permanent) (class EN) Visa under s 65 of the Migration Act 1958 (Cth) (Act). At that time, class EN contained one subclass, which was the subclass 186 (employee nomination scheme). The criteria for applicants seeking to satisfy the requirements for a subclass 186 visa in the Temporary Residence Transition Scheme are set out at cl 186.223(2) of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). This includes cl 187.233 which, as Middleton J observed in Kaur v Minister for Immigration and Border Protection [2018] FCA 779 (at [25]): “is clear on its terms”.

6 In summary, as his Honour noted, it required that the position identified by the appellant in a visa application be nominated in an application for approval which had been approved or not subsequently withdrawn. In September 2017, the delegate of the Minister (Min i ster) had refused to grant the applicant the visa because of the failure to meet cl 186.223(2) of Sch 2 of the Regulations as Mr Patel was not the subject of an approved nomination, and this was affirmed by the Tribunal a little over two years later. It was against this background that after a further delay of almost three years, the parties appeared before the primary judge.

7 In ex tempore reasons, his Honour dismissed the application for judicial review with costs. In summary, the primary judge held that Ground One (that the appellant was denied opportunity to provide further evidence) could not be sustained on a fair reading of the Tribunal’s decision (PJ at [16]–[17]). His Honour also held that Ground Two was misconceived because of Mr Patel’s inability to meet one of the relevant criteria (under cl 186.223 of Sch 2 of the Regulations) meant he could not meet the requirements of the entirety of that clause.

8 His Honour further held, that it would be futile to remit the matter to the Tribunal even if jurisdictional error had been established because the Tribunal would be bound to make the same decision on remittal (PJ at [19]–[21]).

C    CONSIDERATION

9 The Minister has drawn to my attention, notwithstanding that the issue has not been raised by Mr Patel, that the Tribunal did not invite the appellant to comment pursuant to s 359A(1) of the Act on information that might form the reason or part of the reasons for its decision, the specifics of this information being the appellant was not the subject of an approved nomination.

10 The Minister accepts that the Tribunal’s failure to comply with s 359A of the Act constitutes jurisdictional error, in accordance with what had been explained by Wigney J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon [2023] FCA 717; (2023) 298 FCR 400 (at 419 [92]).

11 Accordingly, one must proceed on the basis that jurisdictional error has been established. By way of completeness, I should note, however, that Ground One, which was re-agitated before me on appeal, is misconceived. It had asserted that at the hearing of the application before the Tribunal, the Tribunal orally granted the then applicants until January 2020 to provide further evidence in support of their application, but the Tribunal proceeded to make a decision on 31 October 2019, before time had passed for that material to have been filed. However, in the PJ (at [18]) there was no material before the primary judge which sustained this allegation, and his Honour noted the appellants had not filed any evidence or any other material to support the claim the Tribunal had granted them until January 2020 to provide further evidence. There was some suggestion today that such material might be able to be obtained by Mr Patel.

12 Mr Patel tells me from the bar table that he has obtained a oral recording of the proceedings before the Tribunal, however, this material is not before the court, no transcript has been provided, and there would be no basis, in my view, for allowing leave to adduce that material for the first time on appeal on the basis of the material before me. In any event, for reasons I have explained, there is no need to further adjourn. It would be inimical to the overarching purpose set out in Pt VB of the Federal Court of Australia Act 1976 (Cth) for me to adjourn the matter to allow any further material to be placed before the court in circumstances where the Minister has already conceded jurisdictional error.

D    CONCLUSION

13 The real point comes down to what are the consequences of that error. The Minister submits it would be futile for the court to grant relief in the exercise of its discretion: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (at 1197–1198 [28]–[29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). The insuperable difficulty for Mr Patel is that upon any remittal, he and Mrs Patel could not meet cl 186.233(2) of Sch 2 of the Regulations. As Middleton J explained in Kaur, the approved nomination must be the nomination identified in the visa application, which was refused, the applicant cannot now substitute a new nomination.

14 That in a sense, as Mr Patel has confirmed today, is what is sought. It follows that no useful result could ensue by granting relief in this case notwithstanding the existence of error.

15 In those circumstances, the appeal will be dismissed with costs.

| I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. |
Associate:

Dated: 27 March 2026

Top