Patel v Minister for Home Affairs

1. The appeal be dismissed.
2. The first and second appellants do pay the costs of the appeal to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Sandipkumar Patel, his wife and daughter bring an appeal concerning their visa applications. The applications were made in September 2015 and refused in May 2016. The visas sought by the applicants were regional employer nomination (permanent) visas. They were dependent upon the success of an application lodged by Dreamland (Australia) Pty Ltd (Dreamland) for approval of a nominated position to which Mr Patel was proposed to be appointed as an employee. They could not be granted unless the Minister approved the nominated position and the position was still available to Mr Patel: see cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth). 2 The application by Dreamland for approval of the position was refused. An application by Dreamland to the Administrative Appeals Tribunal for review of the refusal was unsuccessful. A separate application by the appellants for review in the Tribunal was also refused. The appellants sought judicial review in the Federal Circuit Court. They claimed jurisdictional error as to the refusal of Dreamland's application. As the primary judge correctly found, they had no standing to seek review of that decision: see s 479 and s 486C of the Migration Act 1958 (Cth). 3 It was further claimed that the Tribunal made jurisdictional errors by refusing an adjournment application and then proceeding without taking further steps to obtain a response from the appellants to a letter from the tribunal sent pursuant to s 359A of the Migration Act. 4 Mr Patel made submissions to the primary judge on behalf of the appellants. No particulars of an arguable claim as to why there were jurisdictional errors were advanced before the primary judge. Nevertheless, the primary judge considered possible claims that might be advanced, and found, correctly, that there was no jurisdictional error evident from the record. 5 As to the adjournment, the primary judge found that once it was clear that the nomination application by Dreamland had failed then that was, in effect, the end of the matter. It is clear that his Honour was correct. 6 In oral submissions today, Mr Patel has said that he asked for an adjournment before the primary judge to see whether he could find a new employer to nominate a position for his visa application. It is not clear whether that was his plan at the time if he could obtain an adjournment or whether he actually made a submission about that to the primary judge. There is no affidavit evidence before me about the position. The matter was only raised orally today. Mr Patel accepts that he did not put any such matters before the primary judge on affidavit. He also accepts that he had not taken any steps to find another employer at the time. 7 Counsel for the Minister was not able to identify any materials indicating that such a submission had been made and there is no reference to such a submission in the reasons of the primary judge. However, even assuming that such a point had been raised, it would not have been a matter that supported an adjournment. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267, Mortimer J (Jagot and Bromberg JJ agreeing), found that the criteria that applied for a visa application of the kind made by the appellants in this case related to a particular position nominated in the application for approval: see [81]-[88]. Her Honour found (at [88]) that the position referred to in the criteria: … is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. 8 Therefore there is no argument available, it seems to me, to the effect that there might be some form of substitution of employer or position. Mr Patel sought further time to investigate whether there were other legal authorities. However, the decision in Singh is a recent decision of the Full Court of this Court concerned with the same provision and is directly on point. Therefore, no purpose would be served by an adjournment for the purpose of receiving further submissions as to that point. 9 Finally, I note that Dreamland has not continued with its application. The nominated position is no longer available to Mr Patel and he no longer works for Dreamland. Therefore the present appeal is both without merit and is futile and the appeal must be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.