Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This matter concerned an application for a constitutional writ under s 476 of the *Migration Act 1958* (Cth) brought by the applicants, citizens of India, against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute arose from a decision of the Administrative Appeals Tribunal (the Tribunal) on 12 August 2020, which affirmed a delegate's decision to refuse the applicants Employer Nomination (Subclass 186) Visas. The applicants' initial application for these visas was made on 26 June 2017, and the delegate's refusal on 11 January 2018 was based on the absence of an approved nomination.

The primary legal issue before the Court was whether the Tribunal had acted in the best interests of the applicants, as alleged by the first applicant in support of a procedural fairness claim. This claim was advanced in the context of the applicants' application for review of the delegate's decision, which had been considered by the Tribunal after a series of postponements and communications regarding a hearing. The applicants contended that the Tribunal had not acted in their best interests, as mentioned in an accompanying affidavit.

Street J reasoned that the applicants' ground of review fundamentally misconceived the function of the Tribunal. The Court held that the Tribunal's role is to determine the correct or preferable decision, not to act in the best interests of an applicant. Consequently, the Court found that the applicants' argument invited an impermissible merits review of the Tribunal's decision. Given that the applicants demonstrably lacked an approved nomination, a necessary criterion for the visas, the Court concluded they could not have succeeded before the Tribunal. The Court was not satisfied that the application raised an arguable case for the relief sought and, finding no merit in the substantive application, dismissed the application under r 44.12 of the *Federal Circuit Court Rules 2001* (Cth).