Federal Court of Australia

Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 501

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The first and second applicants pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

WIGNEY J:

1    Mr Jamish Patel, a citizen of the Republic of India, applied for a Regional Employer Nomination (Subclass 187) visa (187 visa). His wife and child were included in that application as members of his family. A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs refused Mr Patel’s visa application because he did not meet one of the key criteria for the grant of the visa in question. The Administrative Appeals Tribunal subsequently affirmed the delegate’s decision on review. Mr Patel sought judicial review of the Tribunal’s decision in the then Federal Circuit Court of Australia. The primary judge dismissed Mr Patel’s application pursuant to r 44.12 of the Federal Circuit Court Rules 2011 (Cth) on the basis that it did not raise an arguable case for the relief claimed: Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2052 (J). Mr Patel was also ordered to pay the Minister’s costs.

2    Mr Patel applied for leave to appeal the judgment and orders of the primary judge. Leave to appeal is required because the dismissal of an application under r 44.12 of the Rules is interlocutory. For the reasons that follow, Mr Patel’s application for leave to appeal must be dismissed. In short, the judgment of the primary judge is not attended with sufficient doubt to warrant the grant of leave to appeal. Indeed, the proposed appeal is entirely unmeritorious and would be doomed to fail.

The delegate’s decision and the Tribunal’s decision on review

3    Mr Patel’s application for a 187 visa was based on a nomination by a named sponsor. One of the primary criteria for the grant of a 187 visa was that the nomination to which the visa application related had not subsequently been withdrawn: cl 187.233(4) of sch 2 to the Migration Regulations 1994 (Cth). Unfortunately for Mr Patel, his sponsor withdrew its nomination in relation to his visa application.

4    The delegate invited Mr Patel to comment on the fact that his sponsor’s nomination had been withdrawn. Mr Patel did not respond to that invitation. It is perhaps not surprising, in those circumstances, that the delegate refused to grant a 187 visa to Mr Patel because he failed to meet one of the primary criteria for the grant of that visa.

5    Mr Patel applied to the Tribunal for a review of the delegate’s decision. The Tribunal also invited Mr Patel to comment on the fact that his sponsor’s nomination had been withdrawn. Mr Patel did not respond in writing to that invitation. Moreover, at the subsequent hearing in the Tribunal, Mr Patel did not dispute that the nomination had been withdrawn. He simply told the Tribunal that he had understood that the nomination was being arranged by his migration agent and that he had never met with the sponsor. He did not appear to dispute his ineligibility for a 187 visa due to the fact that the applicable nomination had been withdrawn.

Proceedings in the Circuit Court

6    Mr Patel was not legally represented when he commenced and prosecuted his application in the Circuit Court. The grounds of his initiating application did not, on their face, appear to identify or articulate any error or omission on the part of the Tribunal which could amount to a jurisdictional error. The application therefore failed to identify a proper basis upon which the relief sought could be granted. In short summary, the grounds of the application were: first, that the Tribunal did not consider Mr Patel’s application on “compassionate grounds”; second, that the Tribunal did not consider the merits of Mr Patel’s application; and third, Mr Patel’s visa application was refused in circumstances where the status of the nomination had not been checked.

7    Mr Patel’s application was listed for a show cause hearing. The primary judge considered the grounds of Mr Patel’s application and invited him to make submissions. It would appear that Mr Patel’s submissions amounted to little more than an invitation to the Court to determine his matter on “compassionate or discretionary grounds”: J [6].

8    The primary judge found that none of the grounds in the application raised any “arguable case of relevant error”. His Honour held that: the first ground erroneously assumed that the Tribunal had power to determine his application on compassionate grounds (J [9]); the second ground did not identify any arguable case of error (J [11] – [12]); and the third ground simply sought to cavil with the finding that there was no approved nomination: J [13]. His Honour also held that the appellant’s submissions simply dealt with Mr Patel’s personal circumstances and invited “impermissible merits review”: J [14]. It followed that Mr Patel’s application did not raise an arguable case for the relief claimed and that it was appropriate to dismiss it under r 44.12 of the Rules: J [15] – [16].

Proposed grounds of appeal

9    An applicant for leave to appeal in this Court must generally establish that there is sufficient doubt as to the correctness of the relevant judgment to warrant its reconsideration by the Full Court and that, assuming the judgment to be wrong, the applicant would suffer substantial injustice if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655 at 398.

10    The applicant’s proposed grounds of appeal are unfortunately as opaque and uninformative as were his review grounds in the court below. The proposed grounds are, in summary: first, that the delegate made an “incorrect assessment” and the Tribunal dismissed his review application “without giving time”; second, the delegate and the Tribunal “fell into jurisdiction error by acting unreasonably”; third, he satisfied cl 187.233(3) of sch 2 of the Regulations; fourth, his nomination was withdrawn without his knowledge; and fifth, he appealed to the Court to give him “justice”.

11    As can be seen, the proposed grounds of appeal do not address the judgment of the primary judge, or articulate any error or errors that he alleged were made by the primary judge in dismissing his application. The proposed grounds are also devoid of any meaningful detail and in some respects raise arguments or contentions that were not advanced before the primary judge. For the most part the grounds simply address the merits of the decisions made by the delegate and the Tribunal, or contain bare assertions of error on the part of the delegate and the Tribunal.

12    Mr Patel did not file any written submissions. The oral submissions he advanced at the hearing of his leave application did not assist. Indeed, Mr Patel effectively conceded both that this sponsor’s nomination had been withdrawn and that the Tribunal did not make any error in affirming the decision of the delegate to refuse his visa application. His main complaint was that his former migration agent was to blame for the fact that his sponsor’s nomination was withdrawn. He maintained that he had done nothing wrong. He had simply wanted the delegate and the Tribunal to reconsider his case and give him “more time”. He similarly implored the Court to give him more time to apply for a new and different visa.

13    Needless to say, none of Mr Patel’s submissions cast any doubt on the correctness of either the Tribunal’s decision or the judgment and orders of the primary judge.

14    The fundamental problem for Mr Patel is that the Tribunal was plainly right to affirm the decision under review. As already indicated, Mr Patel does not dispute that the sponsor withdrew the nomination upon which his visa application was based. Indeed, his fourth proposed appeal ground is premised on the fact that the nomination was withdrawn. Both the delegate and the Tribunal were, in those circumstances, effectively bound to refuse Mr Patel’s application for a 187 visa. Mr Patel plainly did not meet the criteria for the grant of that visa.

15    The primary judge was also plainly correct to find that Mr Patel’s application did not raise an arguable case for relief and accordingly did not err in dismissing his application. The application for leave to appeal must accordingly be dismissed.

16    While Mr Patel was the main moving party in respect of the application for leave to appeal, his wife and daughter were also named as the second and third applicants respectively. The Minister submitted that the Court should order Mr Patel and his wife to pay the costs of the unsuccessful leave application. There is no reason why Mr Patel and his wife, as the unsuccessful parties, should not be ordered to pay the Minister’s costs.

17    The appropriate orders are accordingly that the application for leave to appeal be dismissed and the first and second applicants pay the first respondent’s costs.

Associate:

Dated:    19 May 2023