Patel v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1340

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1340  

File number(s):

BRG 361 of 2023

Judgment of:

JUDGE EGAN

Date of judgment:

5 December 2024

Catchwords:

MIGRATION – Where it was a pre-condition for the grant of the visa that there be an approved nomination in respect of the position the nominee sought to be employed in – where there was no approved nomination – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 65

Migration Regulations 1994 (Cth), Schedule 2 cl. 187.233

Division:

Division 2 General Federal Law

Number of paragraphs:

10

Date of hearing:

4 December 2024

Place:

Brisbane

Solicitor for the Applicant:

Mr W. Sarpong of Kave at Law

Solicitor for the First Respondent:

Ms L. Helsdon of Sparke Helmore

The Second Respondent:

Submitting appearance, save as to costs

ORDERS

BRG 361 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

NISHABEN VIRALKUMAR PATEL

First Applicant

VIRAL MAHENDRABHAI PATEL
Second Applicant

JIYAN PATEL
Third Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	5 DECEMBER 2024

IT IS ORDERED THAT:

1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.

2.The name of the second respondent be changed to “Administrative Review Tribunal”.

3.The Originating Application for Review filed on 2 August 2023 be dismissed.

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 EGAN

INTRODUCTION

1. The first applicant was the nominee in respect of a nomination application made by Divya Agriculture Management Pty Ltd as trustee for the MH Patel Family Trust (“the nominor”) for the position of Human Resource Adviser.

2. On 31 July 2018, the first applicant applied for a Regional Employer Nomination (Permanent) (Class RN) Visa under s. 65 of the Migration Act 1958 (Cth) (“the Act”). At the time of the application, a Class RN Visa only had one Sub-class, namely Sub-class 187 (Regional Sponsored Migration Scheme).

3. The second and third applicants applied for visas as members of the first applicant’s family unit. The success of their respective visa applications was dependent upon the success of the first applicant’s visa application.

4. The delegate refused to grant the visa because there was no approved nomination in respect of her visa application. A delegate had earlier refused the nomination application.

5. The nominor’s application for review by the Administrative Appeals Tribunal (“the Tribunal”) was dismissed on 22 June 2023. After the review application failed, the nominor filed an Application for Review of the decision of the Tribunal.

6. On 5 December 2024, in a judgment delivered before this judgment was handed down, this Court dismissed the nominor’s Application for Review of the decision of the Tribunal.

7. In circumstances where cl. 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) required that there be an approved nomination as a necessary pre-condition to the grant to the first applicant of the visa, and further where, by reason of the dismissal of the nominor’s application for review in BRG341/2023, there was no approved nomination, the first applicant’s application for review must fail. There is no utility in the Court further considering the first applicant’s application for review.

8. The first applicant has failed to establish jurisdictional error on the part of the Tribunal.

9. The Grounds of Review are without merit and are dismissed in respect of all applicants.

10. The Court will hear the parties as to costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan .

Associate:

Dated:       5 December 2024