Patel v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 319
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 319
File number(s): MLG 602 of 2019 Judgment of: JUDGE CHAMPION Date of judgment: 6 March 2025 Catchwords: MIGRATION – Temporary Business Entry (Skilled) (subclass 457) visa – Where the primary applicant’s application was tied to the approval of her sponsor’s nomination of an occupation in relation to her – Where another Tribunal had refused to approve her sponsor’s nomination – Where because her sponsor’s nomination was not approved the primary applicant could not meet the mandatory criteria for the grant of the visa and the only available decision for the Tribunal was to refuse to grant the visa – Where because the primary applicant was refused the visa as a necessary consequence her family unit was not granted visas – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 140GB, 351 Cases cited: Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 222
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 6 March 2025 Date of hearing: 6 March 2025 Place: Melbourne Applicants: In person Solicitor for the First Respondent: Mr Mangos of Sparke Helmore
Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 602 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RANJANBAHEN BHAVESHKUMAR PATEL
First Applicant
BHAVESHKUMAR REVABHAI PATEL
Second Applicant
SANVI PATEL
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
6 MARCH 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The First Applicant and the Second Applicant are to pay the First Respondent’s costs fixed in the amount of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION AND SUMMARY OF THE OUTCOME
Ms Ranjanbahen Patel is the First Applicant. Her husband, Mr Bhaveshkumar Patel, is the Second Applicant and their daughter, Sanvi Patel, now aged 10, is the Third Applicant. The First Applicant was the primary applicant for a Temporary Business Entry (Skilled) (Subclass 457) visa (visa). The applications of her family unit - the Second Applicant and the Third Applicant - depended upon the outcome of the primary applicant’s visa application.
The Applicants seek judicial review of a decision of the Tribunal dated 31 January 2019 to refuse to grant the Applicants visas.
The Applicants’ visa applications were tied to the primary applicant’s sponsor’s nomination. On 4 January 2019 the Tribunal had dismissed the sponsor’s application of A & A Patel Pty Ltd for approval of its nomination of an occupation in relation to the primary applicant under s. 140GB of the Migration Act 1958 (Cth), shortly before its decision refusing to grant the primary applicant the visa. In summary, without an approved sponsor the Applicant could not satisfy the visa criterion. Because the sponsor’s application was refused, the primary applicant could not meet the required criteria for the grant of the visa, a required criterion being the approval of the sponsor’s nomination, and the only decision the Tribunal could make was to refuse to grant the primary applicant the visa. Once the Tribunal refused to grant the primary applicant a visa, necessarily, it refused to grant visas to her family members.
The Tribunal was correct to refuse to grant the visa. The Applicants have not proved any jurisdictional error. I will dismiss the application. My reasons follow.
GROUNDS
In her Initiating Application in this court, the First Applicant’s grounds of judicial review (paragraphs [1]–[6]) adopt a narrative form.
I accept the First Respondent’s submission that the grounds (as drafted) do not identify or argue an error in the Tribunal’s decision. Rather, taken at their highest, the grounds express an emphatic disagreement with the result of the Tribunal’s decision, which is insufficient to prove jurisdictional error.
Even though the court made orders for the filing of an amended application with proper particulars of the grounds and written submissions, the Applicants have not filed any further written material. In oral submissions before me, the Applicants did not raise any relevant matter outside the scope of the Initiating Application.
I note, nonetheless, the following matters.
A criterion for the grant of the visa was for the First Applicant to have an approved nomination from a business sponsor
In the Initiating Application, at paragraph [1], the First Applicant (accurately) acknowledged that her visa was refused “since the sponsoring company did not meet the requirements of the legislation”.
On 9 September 2015, in her visa application, the primary applicant gave details of her sponsoring employer as “A & A Patel Pty Ltd”, which operated a business known as “Real Spice”. In her resume, the primary applicant sought a retail position as an Assistant Manager/Store Manager. A & A Patel Pty Ltd offered her a contract of employment as a purchaser, subject to her obtaining a visa.
As noted, on 4 January 2019 – importantly with regard to the Tribunal’s subsequent decision to refuse to grant her a visa and her judicial review application – the Tribunal made a decision to refuse the approval of the sponsor’s nomination of A & A Patel Pty Ltd. There is no evidence that the sponsor challenged the Tribunal’s refusal of its nomination.
On 8 January 2019 the Tribunal wrote to the Applicants informing them that it had refused the nomination of A & A Patel Pty Ltd and that:
a nominee requires an approved standard business sponsor to support an application for approval of a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457).
As a result, and as the Tribunal noted in its correspondence, because the First Applicant did not have an approved standard business sponsor, that was a reason for the Tribunal to affirm the delegate’s decision to refuse to grant her the visa. The grant of the visa to the primary applicant was tied to her having an approved standard business sponsor. Without an approved standard business sponsor, the Applicants could not meet the mandatory criteria for the grant of the visas. In its letter dated 8 January 2019 the Tribunal invited comments or response from the Applicants as to this apparent issue with the visa applications. There was no evidence that the Applicants commented or responded to the Tribunal’s letter.
On 31 January 2019 in its decision the Tribunal affirmed the delegate’s decision to refuse to grant the Applicants the visas. The Tribunal’s reasons included the following at [9]:
Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
At [10] the Tribunal noted that it had confirmed the decision to dismiss the application of A & A Patel Pty Ltd. Because there was not an approved nomination of an occupation relating to the primary applicant by a standard business sponsor, the Tribunal wrote at [12] : “… the requirements of cl.457.223(4)(a) are not met.” (CB125). As the primary applicant did not satisfy the criteria for the grant of a visa, so the secondary applicants (her family) were not members of a family unit that satisfied the criteria for the grant of a visa (TD, 13]). The Tribunal concluded by affirming the delegate’s decision not to grant the Applicants visas (TD, [15]).
The fact that the First Applicant met other criteria for the grant of the visa was insufficient
At paragraph [2] of her judicial review application, the First Applicant wrote:
while I fulfil all the requirements of the visa such as language, skills, qualifications, experience and character my application was refused due to no fault of mine.
The grant or refusal of the visa did not depend on issues of “fault” or the First Applicant’s “language, skills, qualifications, experience and character.” Even if the First Applicant fulfilled all other requirements for the grant of the visa, because she did not have an approved nominated business sponsor, under the mandatory provisions of the regulations, the absence of an approved nomination of a business sponsor was an insuperable obstacle to the grant of a visa to her.
In terms of relevant authority, I note that in Begum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 222 at [22] Farrell J noted as to a relevantly similar criterion that the criterion imposes a single requirement “which is either fulfilled or not fulfilled at the time of decision” namely, the approval of the sponsor’s nomination. If the sponsor’s nomination is not approved, the Tribunal must refuse the visa.
The closing of a pathway to Australian residency
At paragraphs [3] and [4] of her judicial review application, the First Applicant notes that an effect of the refusal of the grant of the visa to her was to “close the pathway to residency in Australia” for her and her family. Whether or not this is accurate is not relevant to the proof of jurisdictional error.
Once it is understood that the Tribunal was mandated to make a decision to refuse to grant to her and her family the visas because of the refusal of the sponsor’s nomination, it follows that there was no residual discretion for the Tribunal to waive the requirement for an approved nominated business sponsor even if there was a very significant personal consequence of the closing of a residency pathway for the Applicant and her family in Australia.
The fact that the Tribunal did not seek Ministerial intervention does not disclose jurisdictional error
At paragraphs [5] – [6] of her judicial review application the First Applicant wrote:
The Hon. Member of the tribunal did not chose to exercise their powers conferred to them u/s 351J to recommend my case to the Minister for his intervention though I have unique and compassionate circumstances especially since I have a four year old daughter.
[As written]
There is no s. “351J” of the Migration Act 1958 (Cth). Under s. 351(1) of the Act, “if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the tribunal … a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that decision.” I note, however, that under s. 351(7) the Minister’s power is “non-compellable” and cannot be enlivened by a request for its exercise by an applicant, or any other person, presumably including the Tribunal (Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31, [30]).
There is no evidence that the Applicants made a request of the Tribunal that it seek ministerial intervention on their behalf under s. 351 of the Act. The Applicants have not proved any jurisdictional error because the Tribunal did not seek ministerial intervention on the Applicants’ behalf.
The fact that the First Applicant is willing to provide another nomination does not prove error by the Tribunal in refusing the visa on the basis of the existing nomination
At paragraph [6] of her judicial review application the First Applicant wrote:
I am ready and willing to provide another approved nomination by another sponsor since I am already in the process. I therefore request your Hon. Court to kindly give me natural justice by giving me an opportunity for a fair trial an oblige.
[As written]
The fact that the primary applicant is “ready and willing to provide another approved nomination by another sponsor” does not disclose any jurisdictional error in the Tribunal’s decision to refuse to grant the Applicants visas on 31 January 2019. The nature of judicial review is “backward-looking”: to supervise administrative decision making so as to ensure it conforms with the law rather than to consider future options which may be available to a visa applicant who may be disappointed by a past adverse tribunal decision.
Futility
For completeness, I note that even had the Applicants proved error (which they have not) the granting of relief remains discretionary. Because there is no evidence that A & A Patel Pty Ltd challenged the Tribunal’s refusal to approve its nomination, if any error were proved, on any remittal of the matter the Applicants could still not meet the criteria for the grant of the visas because the primary applicant’s sponsor’s nomination had not been approved. If error were proved, the granting of any relief would be futile.
CONCLUSION
The Applicants have not proved jurisdictional error. I will dismiss the application. I will order that the First Applicant and the Second Applicant pay the First Respondent’s costs fixed in the amount of $5,000, which is the amount the First Respondent sought and is less than scale. I do not intend to make an order for costs against the Third Applicant who is 10 years old.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 6 March 2025
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