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

In this matter before the Federal Court of Australia, Street J considered an application for a constitutional writ under s 476 of the *Migration Act 1958* (Cth). The applicants, citizens of India, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) made on 31 October 2019. The Tribunal had affirmed a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to refuse the grant of an Employer Nomination (Permanent) (Class EN) visa to the first applicant, citing a failure to meet the criteria under cl 186.233 of the *Migration Regulations 1994* (Cth) due to the absence of an approved nomination.

The central legal issues before the Court were whether the Tribunal had erred in law by failing to grant an adjournment to allow the applicants to meet the nomination criteria, and whether the Tribunal had engaged in impermissible merits review. The applicants also contended that the Tribunal had misconstrued the requirements for an employer nomination, failed to consider all relevant evidence, and denied procedural fairness by making a decision without waiting for further information regarding the reopening of a restaurant, which was relevant to the employer's nomination.

Street J reasoned that the applicants' contention that the Tribunal should have provided further time for them to meet the nomination criteria was without merit. The first applicant had been on notice of this deficiency since the delegate's decision, and there was no apparent request for an adjournment before the Tribunal. The Court found that to grant such a request would amount to impermissible merits review. Furthermore, the Court concluded that nothing presented by the applicants identified any arguable case of relevant error by the Tribunal, and therefore, the application for a constitutional writ was dismissed.