Patel (Migration)

The applicants, Mr and Mrs Patel, sought judicial review of a decision by the Administrative Appeals Tribunal affirming the refusal of their application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187 (Regional Sponsored Migration Scheme), direct entry stream. The primary applicant was employed as a retail manager and had an approved position nomination. However, a separate review had affirmed the refusal of this nomination application.

The central legal issues before the Federal Circuit and Family Court of Australia concerned the jurisdiction to consider the visa applications of the second and fourth applicants. The second applicant, an older child, had become an Australian citizen after the delegate's decision. The fourth applicant, a younger child, was born after the delegate's decision and was not included in the parents' visa application, nor was a separate application made for them. The court also considered whether the circumstances warranted a request for referral for ministerial intervention, specifically in light of the length of residence in Australia and the older child's citizenship.

The court reasoned that it lacked jurisdiction to consider the visa applications of the second and fourth applicants. For the second applicant, the court found that their subsequent acquisition of Australian citizenship meant they were no longer a member of the family unit for the purposes of the visa application. For the fourth applicant, the court determined that as they were not included in the original application and no separate application was made, they were not properly before the court. While acknowledging the potential for ministerial consideration due to the length of residence and the citizenship of the older child, the court affirmed the Tribunal's decision regarding the primary applicants' visa application.