Federal Court of Australia

Patel v Minister for Immigration and Citizenship [2026] FCA 782

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration and Citizenship.

2.    The name of the second respondent be amended to Administrative Review Tribunal.

3.    The application for an extension of time be granted but leave to appeal be refused.

4.    The applicants pay the costs of the first respondent of and incidental to their application for an extension of time and leave to appeal fixed in the sum of $5,000.

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

REASONS FOR JUDGMENT

BEACH J:

1    The applicants seek an extension of time and leave to appeal from the orders and judgment of the primary judge who dismissed the applicants’ application for review of a registrar’s decision pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to summarily dismiss the applicants’ application for judicial review pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) because the application had no reasonable prospects of success.

2    The applicants had sought judicial review of a decision of the then Administrative Appeals Tribunal.

3    A decision of the Federal Circuit and Family Court of Australia pursuant to r 13.13(a) of the FCFCOA rules is interlocutory in nature and therefore requires this Court’s leave to appeal. Further, any application for leave to appeal was required to be made within 14 days from the date of the primary judge’s orders, but the application was filed 2 days outside the time limit prescribed. The applicants therefore also require an extension of time to seek leave to appeal.

4    For the reasons that follow, I will grant the application for an extension of time but refuse leave to appeal. I should note at the outset that the first applicant applied for an adjournment to seek legal advice which I refused given that there had been substantial delay in this matter and given that in my view any advice would not have been able to rectify the fundamental problem that the application faced.

Background

5    On 13 October 2020, the first applicant, a citizen of India, applied for an Employer Nomination (Subclass 186) visa under the sponsorship of RDMP Pty Ltd. The first applicant’s husband applied for a visa as a member of her family unit.

6    On 2 December 2022, a delegate of the Minister refused to grant the first applicant her visa. The delegate found that the first applicant did not meet cl 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) because she was not the subject of an approved nomination, as the sponsor’s nomination application had been refused. The second applicant was found not to have satisfied cl 186.311.

7    On 5 December 2022, the applicants applied to the Tribunal for review of the delegate’s decision, nominating a migration agent as their authorised representative.

8    On 27 April 2023, the Tribunal pursuant to s 359A of the Migration Act 1958 (Cth) invited the applicants to comment on or respond to information that the Tribunal had no jurisdiction to review a decision to refuse the nomination and that the nomination refusal decision remained unchanged. The s 359A invitation requested a response by 11 May 2023.

9    On 9 May 2023, the applicants’ representative requested a six-week extension to respond to the s 359A invitation as the applicants had submitted a freedom of information request to the relevant department for documents related to their visa application. On 10 May 2023, the Tribunal granted an extension to 24 May 2023 and explained that it was open to the applicants to make a request for written material pursuant to s 362A.

10    On 18 May 2023, the representative requested a further six-week extension as the expected response date for the FOI request was 8 June 2023. On the same day, the Tribunal refused to grant the extension and reiterated that any comments or response to the s 359A invitation must be received by 24 May 2023. The applicants provided no comments or response.

11    On 26 May 2023, the Tribunal affirmed the delegate’s decision.

12    The Tribunal recorded that it had invited the applicants pursuant to s 359A to comment on information indicating that the Tribunal had found that it had no jurisdiction to review the department’s decision to refuse the sponsor’s nomination, and therefore the decision to refuse the sponsor’s nomination stood. The Tribunal found that the applicants, having not responded to the s 359A invitation within the extended period, were not entitled to appear before it pursuant to ss 359C and 360(3). The Tribunal was satisfied that the s 359A invitation was sent to the representative using the email address provided for the review and that the applicants were properly informed of the consequences of not responding. And the Tribunal found that there was no approved nomination for the first applicant to satisfy cl 186.223, and as she did not satisfy the primary criteria, the second applicant did not satisfy cl 186.311.

The proceedings in the court below

13    By application filed in the court below, on 26 June 2023, the applicants sought judicial review of the Tribunal’s decision. The application advanced six grounds of review.

14    On 11 April 2024, the Minister filed a response seeking that the application be listed for a summary dismissal hearing.

15    On 23 July 2024, the parties appeared at a hearing of the Minister’s application for summary dismissal before a registrar, where the judicial review application was summarily dismissed because it had no reasonable prospects of success.

16    On 16 August 2024, the applicants filed an application for an extension of time to review the registrar’s decision dated 23 July 2024. The application was filed 17 days outside the prescribed time of 7 days.

17    On 15 October 2024, the primary judge granted the extension of time and dismissed the application for review of the registrar’s decision dated 23 July 2024.

18    The primary judge correctly identified that the applicants’ application for review of the registrar’s decision was filed out of time and that they required an extension of time. The primary judge considered the relevant factors in determining whether to extend time and held that it was appropriate to do so. The primary judge observed that the applicants’ grounds of review contained in their application for review of the registrar’s decision were misconceived, as the hearing of the application was a hearing de novo. With respect to the applicants’ grounds of review in their application for judicial review, the primary judge held that there was nothing to suggest an irrational or unreasonable conclusion in the Tribunal’s decision and there was no error of law apparent from the Tribunal’s reasoning. Further, the primary judge said that even if there was jurisdictional error, remitting the matter to the Tribunal would be futile because there was no approved nomination, and the sponsor had been deregistered. Generally, the primary judge held that none of the applicants’ grounds of review disclosed jurisdictional error by the Tribunal, and nor did they disclose reasonable prospects of successfully prosecuting the application.

Application for an extension of time and leave to appeal

19    There is little doubt that the applicants require leave to appeal from the interlocutory decision for summary dismissal. Further, the applicants were required to file an application for leave to appeal from the primary judge’s orders within 14 days of the date on which the orders were made. The application therefore should have been filed by no later than 29 October 2024. The applicants therefore require an extension of time of 2 days. Now given the shortness of the delay and without lingering further on the topic, I will grant the applicants an extension of time. Let me turn to the leave to appeal question.

20    In order for the Court to grant leave to appeal, the applicants must satisfy the Court that the judgment of the primary judge is attended with sufficient doubt to warrant it being reconsidered and that substantial injustice would result if leave were refused supposing the decision to be wrong.

21    In my view the application for leave to appeal ought to be refused because the proposed substantive appeal is without merit. Let me address the proposed grounds of appeal.

22    Grounds one and two state why the applicants’ application was filed out of time and that they seek an extension of time and leave to appeal. These are not proper grounds of appeal.

23    Grounds three, five, and six respectively take issue with the primary judge failing to consider that the applicants met the criteria for the visa, failing to find that the Tribunal misconstrued cl 186.223 and failing to find that the Tribunal failed to ask the correct question of whether the applicants met the requirements to work in the position nominated for the visa.

24    These grounds fail on the face of the primary judge’s written reasons for judgment, whereby the primary judge broadly considered and made findings on these matters. The primary judge correctly found that in circumstances where there was no approved nomination, there was no error in the Tribunal finding that cl 186.223 could not be met, and that no error of law was apparent in the Tribunal’s reasoning. Effectively, in circumstances where the lack of an approved nomination was fatal to the applicants’ application before the Tribunal, there can be no error discerned from the primary judge’s finding that the Tribunal’s decision did not reveal jurisdictional error. These grounds are without merit.

25    Ground four alleges that the primary judge erred by failing to find that the Tribunal denied the applicants procedural fairness. While not raised in the applicants’ application for judicial review, the primary judge noted that the Tribunal had sent the applicants the s 359A invitation, and that the Tribunal considered that it would be futile to further delay a decision following the applicants’ failure to respond to the invitation in circumstances where cl 186.223 could not be met without an approved nomination and the sponsor had been deregistered. The primary judge found that there was no jurisdictional error in the Tribunal proceeding in that way.

26    This finding was clearly open to the primary judge. This is in circumstances where the Tribunal complied with its obligations under Division 5 Part 5 of the Act by issuing a valid s 359A invitation, and it was then open and reasonable for the Tribunal to refuse to grant a further extension of time to respond for the reason it gave, being that the relevant nomination had not been approved, and the applicants were unable to rely on any other nomination to be successful. When the applicants failed to respond to the s 359A invitation by the extended date, the Tribunal correctly found that they lost their right to a hearing due to the operation of ss 359C(2), 360(3) and 363A of the Act. Accordingly, no breach of the Tribunal’s procedural fairness obligations is revealed, and there is no error in the primary judge’s decision in this regard. This ground is without merit.

27    Ground seven alleges that the primary judge was unfair and/or unreasonable in not allowing the applicants’ application for judicial review because there was no adverse information known to the department about the sponsor, and therefore they were able to be considered for grant of the visa. This ground is misconceived in circumstances where the applicants did not have standing to challenge the Tribunal’s decision that it did not have jurisdiction in relation to the sponsor’s nomination. Therefore, there can be no error in the primary judge failing to consider this matter.

28    Further, the fact remained that the applicants were not the subject of an approved nomination at the time of the Tribunal’s decision, and accordingly there can also be no error in the primary judge’s finding that the Tribunal was correct to conclude that the applicants did not meet the criteria for the visa. This ground is without merit.

29    Finally, even if the applicants could establish some error in the Tribunal’s decision, any error would not be material and it would be futile to remit the matter. This is in circumstances where cl 186.223 of Schedule 2 to the Regulations requires that the position to which the application relates must be the subject of an approved nomination. The word “position” in cl 186.223 refers to a particular job with a particular employer that exists at a particular point of time. The “position” in this case cannot be the subject of an approved nomination as the decision of the delegate to refuse to approve the sponsor’s nomination had been the subject of a no jurisdiction finding by the Tribunal, and it is not apparent that the sponsor sought judicial review. Moreover, the sponsor was deregistered on 15 September 2022. Accordingly, the applicants did not, and cannot, meet the requirements of cl 186.223, and if the matter was ultimately remitted to the Tribunal it would be bound to again affirm the delegate’s decision.

Conclusion

30    The primary judge’s decision to dismiss the application for review is not attended by any error. Nor is there any jurisdictional error apparent in the Tribunal’s decision. None of the proposed grounds of appeal have reasonable prospects of success, and even if any error is established it would not be material as it would be futile to remit the matter. The application for leave to appeal is dismissed with costs.

Associate:

Dated:    19 June 2026