Patel v Minister for Immigration and Multicultural Affairs
[2025] FCA 171
•7 March 2025
FEDERAL COURT OF AUSTRALIA
Patel v Minister for Immigration and Multicultural Affairs [2025] FCA 171
Review of: Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 661 File number(s): VID 269 of 2020
VID 289 of 2020Judgment of: O’CALLAGHAN J Date of judgment: 7 March 2025 Catchwords: MIGRATION – applications for Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visas – where applications were not supported by an approved nomination by a standard business sponsor – where a delegate of the Minister refused visa applications – where the Administrative Appeals Tribunal (the Tribunal) affirmed the delegate’s decision – where the Federal Circuit Court of Australia (the FCC) dismissed the applications for judicial review of the Tribunal’s decision – where applicants sought extensions of time to apply for leave to appeal from the FCC decision – where substantive appeals enjoy no prospects of success –applications dismissed Legislation: Migration Act 1958 (Cth) ss 140GB, 359A and 359C(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05
Federal Circuit Court Rules 2001 (Cth) rr 13.03C(1)(c) and 44
Federal Court Rules 2011 (Cth) rr 9.63(1) and (3), 35.13, 36.03 and Division 9.6
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth) Sch 2, regs 457.223 and 457.321
Cases cited: Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 661 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 53 Date of hearing: 6 February 2025 Appearances for the Applicants: The First Applicant and Third Applicant appeared on behalf of all Applicants Solicitor for the First Respondent: J Birman of Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent submitted to any order of the Court, save as to costs ORDERS
VID 269 of 2020
VID 289 of 2020BETWEEN: HIREN JASHBHAI PATEL
First Applicant
ARYA HIREN PATEL
Second Applicant
SONALBEN HIREN PATEL
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
O’CALLAGHAN J
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The first applicant be appointed litigation representative for the second applicant pursuant to r 9.63(1) of the Federal Court Rules 2011 (Cth) (the FCR).
3.The requirement in r 9.63(3) of the FCR to file an affidavit of consent in relation to the appointment in the preceding paragraph of these orders be dispensed with.
4.To the extent necessary, the need for compliance with Division 9.6 of the FCR be dispensed with.
5.The applications in each proceeding be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
REASONS FOR JUDGMENT
O’CALLAGHAN J
INTRODUCTION
I have before me two applications arising from a decision of the Federal Circuit Court of Australia (FCC) dated 16 March 2020 (FCC decision) in which it dismissed:
(a)the judicial review applications of Mr Hiren Jashbhai Patel and his daughter Miss Arya Hiren Patel following a show-cause hearing; and
(b)the judicial review application of Ms Sonalben Hiren Patel (Mr Patel’s wife and Miss Patel’s mother) for non-appearance.
By way of application filed in the Federal Court of Australia (FCA) on 23 April 2020, Mr Patel and Miss Patel in proceeding VID269/2020 sought an extension of time to apply for leave to appeal the FCC Decision.
By way of application filed in the FCA on 30 April 2020, Ms Patel in proceeding VID289/2020 also sought an extension of time to apply for leave to appeal the FCC Decision.
On 7 September 2021, I made an order that Ms Patel be joined as the third applicant to proceeding VID269/2020.
On 6 February 2025, Mr Patel and his wife appeared at a hearing before me but they made no submissions, in writing or orally, in support of their applications.
For the reasons that follow, the applications for an extension of time to apply for leave to appeal the FCC Decision must be refused because the applicants cannot demonstrate that the FCC Decision was attended by sufficient doubt to warrant its reconsideration on appeal, and the substantive appeals enjoy no prospects of success.
THE FACTS
On 9 November 2016, the applicants in both proceedings applied for a Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa (the visa). The first applicant in proceeding VID269/2020 was the primary visa applicant. The second and third applicants were listed as “accompanying secondary visa applicants” in the first applicant’s primary visa application. Mr Arun Kumar (the Sponsor) was listed as the sponsoring employer.
On 13 June 2017, a delegate of the Minister refused the applicants’ application for the visa (the Delegate’s Decision) because:
(a)the first applicant was not the subject of an approved nomination and therefore did not satisfy the requirement in para 457.223(4)(a) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) at the time of the application; and
(b)the second and third applicants were not members of the family unit of a person who was the holder of a subclass 457 visa and therefore did not satisfy the requirement in reg 457.321 of Sch 2 to the Regulations at the time of the application.
Between April 2016 and June 2017, the Sponsor made three nomination applications in relation to the first applicant, as follows:
(1)on 29 April 2016, the Sponsor lodged the first nomination application in relation to the first applicant. On 19 September 2016, a delegate of the Minister refused the nomination application. The Sponsor did not seek review of this decision;
(2)on 17 October 2016, the Sponsor lodged a second nomination application in relation to the applicant. On 4 May 2017, a delegate of the Minister refused the second nomination application. On 7 February 2019, the second nomination refusal was affirmed by the Administrative Appeals Tribunal (the Tribunal). On 14 March 2019, the Sponsor sought judicial review of the Tribunal’s decision in the FCC. See proceeding MLG718/2019. On 18 July 2024, the Sponsor failed to appear at a call-over in the Federal Circuit and Family Court of Australia (FCFCoA) and proceeding MLG 718 of 2019 was dismissed; and
(3)on 1 June 2017, the Sponsor lodged a third nomination application. On 23 January 2018, a delegate of the Minister refused the third nomination application. The Sponsor did not seek review of this decision.
On 28 June 2017, the applicants applied to the Tribunal for review of the Delegate’s Decision.
On 25 February 2019, the Tribunal affirmed the Delegate’s Decision (the Tribunal’s Decision).
On 7 March 2019, the applicants applied to the FCC for judicial review of the Tribunal’s Decision.
On 16 March 2020, the matter was heard before Judge Riethmuller (as his Honour then was) in the FCC as a show-cause hearing. His Honour ordered that:
(a)the first and second applicants’ judicial review application be dismissed pursuant to r 44 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules).
(b)the third applicant having failed to appear, her judicial review application be dismissed pursuant to r 13.03C(1)(c) of the FCC Rules.
On 27 April 2020, Judge Riethmuller published written reasons for judgment. See Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 661.
As noted above at paragraphs 2 and 3:
(a)on 23 April 2020, the first and second applicants in proceeding VID269/2020 filed an application in the FCA seeking an extension of time to apply for leave to appeal the FCC Decision; and
(b)on 30 April 2020, the applicant in proceeding VID289/2020 filed an application in the FCA seeking an extension of time to apply for leave to appeal the FCC Decision.
THE LAW
At the time the applicants applied for the visa (i.e. 9 November 2016), reg 457.223 of Sch 2 to the Regulations relevantly provided as follows:
…
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa) the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and
(ba) either:
(i) the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii) each of the following applies:
(A) the applicant is employed to work in the nominated occupation;
(B) if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C) if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d) the Minister is satisfied that:
(i) the applicant’s intention to perform the occupation is genuine; and
(ii) the position associated with the nominated occupation is genuine; and
(da) the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e) if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(eb) if:
(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant;
the applicant:
(iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v) achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec) if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f) either:
(i) there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
…
On 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth), which removed subclass 457 from the class of skilled visas.
THE TRIBUNAL’S DECISION
On 16 November 2018, the first applicant appeared before the Tribunal to give evidence and present arguments with the assistance of a migration agent.
On 8 February 2019, the Tribunal wrote to the first applicant pursuant to s 359A of the Migration Act 1958 (Cth) (the Act). The Tribunal:
(a)noted that, on 7 February 2019, the Tribunal had affirmed the second nomination refusal;
(b)noted that, in light of the Tribunal’s decision, the first applicant was “not currently the subject of an approved nomination by a standard business sponsor, as required by [para] 457.223(4)(a) of Schedule 2 to the [Regulations]”;
(c)stated that this information would be the reason or part of the reason for affirming the Delegate’s Decision; and
(d)sought a written response by 22 February 2019.
No response was received by the Tribunal from the first applicant.
In its decision dated 25 February 2019, the Tribunal:
(a)observed that it was precluded from inviting the first applicant to appear before it as he had failed to respond to its letter issued under s 359A of the Act;
(b)found that s 359C(2) of the Act applied and decided to proceed to make a decision;
(c)found that, as the Tribunal had affirmed the second nomination refusal, and as there was no evidence to suggest that the first applicant was the subject of an approved nomination, the applicant did not meet the requirements of para 457.223(4)(a)(i) of Sch 2 to the Regulations;
(d)concluded that, as the first applicant did not satisfy the primary criteria for the grant of the visa, it was bound to find that the second and third applicants did not satisfy the requirements of reg 457.321 of Sch 2 to the Regulations; and
(e)affirmed the Delegate’s Decision.
THE FCC DECISION
Judge Riethmuller found as follows with respect to the applicants’ 21 grounds of review:
(a)with respect to grounds 1, 2, 5, 7, 9, 13, 15 and 20, the Tribunal was aware of the importance of the applicant having an approved sponsor and had regard to the relevant facts before it, and there was no further evidence that it would have been reasonably required to seek out in a case like this;
(b)with respect to grounds 3 and 21, the Tribunal did not misapply para 475.223(1)(a). It made the only decision open to it once it found that the first applicant did not have an approved nomination;
(c)grounds 4, 6, 10 and 11, which asserted that the Tribunal had no jurisdiction, were misconceived;
(d)grounds 7, 10, 14, 16, 17 and 18 seemed to relate to another case, as the Tribunal clearly had regard to the material before it and wrote to the first applicant asking him to address the key issue in the case;
(e)with respect to grounds 8, 15, 16, 17 and 18, which concerned allegations of bias, there was nothing before the court that made these grounds arguable;
(f)with respect to ground 12, there was nothing unreasonable or unconscionable about the Tribunal’s Decision; and
(g)ground 19 was misconceived as the Delegate’s Decision could not be challenged by the FCC, and the Tribunal had reviewed that decision such that it was no longer relevant for the purpose of the FCC proceeding.
In summary, his Honour found that the grounds pleaded by the applicants did not raise an arguable case for relief and dismissed the applications.
APPLICATIONS TO THIS COURT
On 23 April 2020, the first and second applicants in proceeding VID269/2020 filed with this court:
(a)an application (also dated 23 April 2020) for an extension of time to apply for leave to appeal the FCC Decision, supported by 24 grounds;
(b)an affidavit in support of the application sworn by the first applicant, reciting the same 24 grounds as those appended to the application; and
(c)a draft notice of appeal (containing 31 grounds).
On 30 April 2020, the applicant in proceeding VID289/2020 filed with this court:
(a)an application (dated 23 April 2020) for an extension of time to apply for leave to appeal the FCC Decision, supported by 21 grounds;
(b)an affidavit in support of the application sworn by the applicant, reciting the same 21 grounds as those appended to the application; and
(c)a draft notice of appeal (containing 31 grounds).
On 7 September 2021, I made an order joining the applicant in proceeding VID289/2020 as the third applicant to proceeding VID269/2020.
Leave to appeal
Leave to appeal is required because the FCC Decision was interlocutory.
Extensions of time
Rule 35.13 of the Federal Court Rules 2011 (Cth) (the FCR) provides that a written application for leave to appeal must be filed:
(a) within 14 days after the date on which the judgment was pronounced or the order was made; or
(b) on or before a date fixed for that purpose by the Court from which leave to appeal is sought.
Rule 36.03 of the FCR, which deals with the separate issue of when a notice of appeal must be filed, provides as follows:
An appellant must file a notice of appeal:
(a) within 28 days after:
(i) the date on which the judgment appealed from was pronounced or the order was made; or
(ii) the date on which leave to appeal was granted; or
(b) on or before a date fixed for that purpose by the court appealed from.
The first and second applicants in proceeding VID269/2020 filed:
(a)their application for leave to appeal the FCC Decision on 23 April 2020, some 24 days beyond the 14-day period (ending 30 March 2020) after the FCC Decision was pronounced and orders were made (compare r 35.13(a) of the FCR); and
(b)their draft notice of appeal on 23 April 2020, some 10 days beyond the 28-day period (ending 13 April 2020) after the FCC Decision was pronounced and orders were made (compare r 36.03(a)(i) of the FCR).
The applicant in proceeding VID289/2020 filed:
(a)her application for leave to appeal the FCC Decision on 30 April 2020, some 31 days beyond the 14-day period (ending 30 March 2020) after the FCC Decision was pronounced and orders were made (compare r 35.13(a) of the FCR); and
(b)her draft notice of appeal on 30 April 2020, some 17 days beyond the 28-day period (ending 13 April 2020) after the FCC Decision was pronounced and orders were made (compare r 36.03(a)(i) of the FCR).
Order 6 of Judge Riethmuller’s orders of 16 March 2020 provided that “[t]he time for filing any Notice of Appeal under Rule 36.03 of the [FCR] be extended to the date 28 days after publication of the settled written reasons for judgment, which were delivered orally”. As his Honour published written reasons on 27 April 2020, the effect of order 6 was to extend the date by which the applicants were required to file their notices of appeal to 25 May 2020 (see r 36.03(b) of the FCR). The filing dates discussed above indicate that both applicants satisfied this timing requirement in respect of the notices of appeal.
By contrast, Judge Riethmuller’s orders provided no extension of time in respect of the filing dates for the applications for leave to appeal to FCC Decision. Absent any extension, the applicants did not comply with r 35.13 of the FCR, as they did not file their applications within the 14-day period (ending 30 March 2020) after the FCC Decision was pronounced and orders were made.
As noted above, the applicants subsequently applied to this court for an extension of time to apply for leave to appeal the FCC Decision.
CONSIDERATION
For the reasons that follow, the applications for an extension of time to apply for leave to appeal the FCC Decision must be refused.
Leave to appeal
A decision on whether to grant leave to appeal is discretionary and relevant factors include whether, in all of the circumstances, the impugned decision is attended with sufficient doubt to justify its reconsideration on appeal and whether substantial injustice would result if leave were refused.
For the reasons that follow, the FCC Decision is not attended with sufficient doubt, whether in relation to proceeding VID269/2020 or proceeding VID289/2020.
The applicants’ draft notice of appeal in proceeding VID269/2020 listed 31, largely unparticularised, grounds of appeal. The applicant’s draft notice of appeal in proceeding VID289/2020 listed the same 31 grounds of appeal as those relied on by the applicants in proceeding VID269/2020. None of the grounds of appeal discloses any basis for a finding that there is sufficient doubt in the FCC Decision to warrant the granting of leave to appeal.
As the Minister submitted, grounds 1 to 14, and 29, are generic and enjoy no prospects of success because:
(a)the grounds, in effect, list the suite of possible grounds in a judicial review application and do not engage in any way with the substance of the Tribunal’s Decision or the FCC Decision;
(b)the grounds, save for ground 3, are repetitive and recite in generic terms the matters raised in slightly more detail in the balance of the grounds (except for the matter of bias); and
(c)in any event, grounds 1 to 14, and 29, were not raised in the FCC and it is not in the interests of justice that the applicants be permitted to rely on them for the reasons set out above.
Further, in relation to ground 3, by which the applicants complain that the Tribunal relied on materials it should not have, leave must also be refused because there is no basis upon which to conclude that the Tribunal relied on irrelevant materials such that it committed a jurisdictional error.
Grounds 15 to 28, and 30, recite almost verbatim the grounds relied on by the applicants in the FCC. By these grounds, the applicants have neither engaged with nor identified any errors of fact or law in the FCC Decision. Judge Riethmuller’s findings, as summarised in paragraph 22 above, are correct for the reasons set out in the FCC Decision.
Ground 31 was not raised before the FCC, but it is untenable. The applicants allege that the FCC and the Tribunal failed to consider “all aspects” of their claims, “based on genuine compassionate, compelling and extenuating medical grounds beyond [their] control which rendered [them] unable to and which prevented [them] from fully performing and complying with [their] visa conditions”, but that is not to identify any error of fact or law in the FCC Decision.
As Judge Riethmuller said, this is “a very straightforward case”. The first applicant did not have an approved sponsor and was therefore not eligible for the visa. The first applicant acknowledged as much in his letter to the Department of Immigration and Border Protection (as it then was) in June 2017, in which he stated: “I understand that without an approved nomination I cannot be granted a 457 visa”.
There remains little weight, if any, to be given to the question of substantial injustice in these proceedings, in circumstances where the applicants enjoy no prospects of success in any appeals.
Finally, insofar as the third applicant challenges Judge Riethmuller’s decision to dismiss her application in the FCC for non-appearance, as the Minister submitted:
(a)Judge Riethmuller’s decision was the correct decision in law in circumstances in which the third applicant failed to appear;
(b)the third applicant would have no prospects of success if she were to seek re-instatement of her application in the FCFCoA pursuant to r 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth); and
(c)in the circumstances, leave to appeal is to be refused, because there is insufficient doubt to justify reconsidering the FCC Decision on appeal, and substantial justice will not accrue if leave is refused, particularly noting that the third applicant’s case stands or falls with that of the first applicant.
Further, at the time that the applicants applied for the visa, it was a requirement for the grant of a subclass 457 visa that a nomination had been approved under s 140GB of the Act, and that that approval of the nomination had not ceased. See paras 457.223(4)(a)(i) and (iii) of Sch 2 to the Regulations.
As a result of the amendment to the Regulations, noted at paragraph 17 above, it is no longer possible for an employer to seek approval of a nomination to sponsor a prospective subclass 457 visa holder.
As I have explained, at no time since the applicants applied for the visa have they been the subject of an approved nomination. Moreover, and in any event, it is now not possible for the applicants to secure an approved nomination for the grant of the visa.
CONCLUSION
The applications for an extension of time to apply for leave to appeal must be dismissed because the FCC Decision is not attended with sufficient doubt to justify reconsideration on appeal, and any appeals have no merit.
Costs follow the event.
The Minister also sought orders in relation to the second applicant in proceeding VID269/2020 as follows:
(a)the first applicant be appointed litigation representative for the second applicant pursuant to r 9.63(1) of the FCR;
(b)the requirement in r 9.63(3) of the FCR (that an affidavit of consent in relation to the appointment in the preceding paragraph of these orders be filed) be dispensed with; and
(c)to the extent necessary, the need for compliance with Division 9.6 of the FCR be dispensed with.
I will make those orders.
The Minister also asked that an order be made in both proceedings changing the title of the first respondent to Minister for Immigration and Multicultural Affairs. That order will also be made.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O’Callaghan. Associate:
Dated: 7 March 2025
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