Patel v Minister for Immigration and Citizenship [2025] FedCFamC2G 921

1. These proceedings relate to an application for judicial review of a tribunal decision to affirm a decision to refuse an employer nomination visa to the primary applicant and named dependent.
2. That application was summarily dismissed by a registrar of the Court by reason of a lack of reasonable prospects of success.
3. The First Applicant now seeks review of the registrar's decision.
4. These reasons explain why the application must be dismissed and the costs ordered.

1. On 11 October 2016, the First Applicant applied for an Employer Nomination (Subclass 186) visa, in the temporary residence transition stream (the employer nomination visa application). The First Applicant nominated the position of customer service manager and named a migration agent as authorised recipient. The nominator was specified as "V Brahmbhatt & N Rebello" (sponsor). The Second Applicant was included in the employer nomination visa application as the First Applicant's spouse and a member of the family unit.
2. On 16 June 2017, a delegate refused the sponsor's nomination application (the nomination refusal decision) and the Applicants were sent written notice from the First Respondent's department that this meant their visa could not be approved. By that correspondence, the Applicants were invited to withdraw their employer nomination visa application or otherwise invited to comment in writing within 28 days.
3. On 27 July 2017, a delegate refused to grant the First Applicant's visa because the First Applicant was not subject of an approved nomination and did not satisfy cl.186.223(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (the delegate's visa refusal decision).
4. Both the nomination refusal decision and the delegate's visa refusal decision were subsequently subject of application for review by the Administrative Appeals Tribunal (as it then was) (Tribunal).
5. On 10 May 2019, the Tribunal affirmed the nomination refusal decision and the Applicants were sent written invitation to comment on or respond to the information that the sponsor's application for the nominated position had not been approved, being relevant as it were a requirement for the grant of the employer nomination visa that the position specified in the application was subject of an approved nomination. The notice included a statement to the effect that this may mean the decision under review must be affirmed.
6. On 15 May 2019, the Applicants' then representative responded to the Tribunal's invitation. By that response, the First Applicant acknowledged the fact that his sponsor's nomination application was not successful and that he therefore did not meet the visa requirements. The First Applicant requested the Tribunal grant him an opportunity for a hearing to express his situation, further time to provide a successful nomination or for the Tribunal to recommend his case for ministerial intervention under s.351 of the Migration Act 1958 (Cth) (Act) considering the helplessness of the First Applicant in light of his and his wife's future.
7. The Applicants were subsequently invited to attend a hearing before the Tribunal, which was convened on 14 June 2019. The Tribunal's record shows that the Applicants, together with their representative, attended on that occasion.
8. On 12 July 2019, the Applicant's representative sent an email to the Tribunal. By that correspondence, it was again acknowledged that the First Applicant did not meet the basic requirement of having a successful nomination but submitted that the First Applicant was a victim of circumstance as he had no control over the activities of the sponsor. Further, that he had worked for the sponsor for over 3 years, that the refusal of the visa has affected his ability to make further visa applications, that he and his wife have never breached any of their visa conditions and had contributed to the Australian economy and society, and that the First Applicant was likely to be nominated by another large organisation shortly and was awaiting the paperwork for same.
9. On 6 August 2019, the Tribunal affirmed the delegate's visa refusal decision and provided written reasons (Tribunal's decision). In summary, the Tribunal concluded that the First Applicant was not subject of an approved nomination and therefore did not meet cl.186.223 of Schedule 2 to the Regulations and this was the basis for affirming the delegate's visa refusal decision.

Application for judicial review of the Tribunal's decision

1. On 6 September 2019, the Applicants filed the present application for judicial review of the Tribunal's decision. The originating application was accompanied by an affidavit of the First Applicant which annexed the Tribunal's decision and the delegate's visa refusal decision. By that application for judicial review, there were 3 grounds as follows:
   1. Jurisdictional error - Member of Administrative Appeals Tribunal & Delegate of Minister misinterpreted the cl.186.223 (2) of Schedule 2 to the Regulations while refusing my 186 ENS visa application.
   2. Procedural fairness- Tribunal did not consider my previous work with sponsor for 3 years in Australia while making the decision under clause 186.223
   3. Member of Administrative Appeals Tribunal & The Department of Immigration has exceeded its jurisdiction in that it followed the a procedure contrary to law and refused to approve my ENS Class EN, SC 186 visa application under regulation clause 186.223. I was not being given an opportunity to provide a new nomination.

1. On 24 September 2019, the First Respondent filed a response to the Applicants' originating application by which it were sought that the application be dismissed with costs.
2. On 21 July 2022, an affidavit of the First Applicant was filed which annexed the application for employer nomination.
3. On 5 December 2022, an affidavit of the First Applicant was filed which deposed to his circumstances including arrival in Australia, work history and his marriage. By that affidavit, the First Applicant acknowledged the delegate's reason for refusal of his sponsor nomination. Further, that in the period of delay pending the Tribunal hearing, the sponsor had unfortunately sold the business and the First Applicant was made redundant and commenced working elsewhere. The First Applicant further deposed to his contributions to the Australian economy, difficulties in his personal life and the adverse impact on his ability to apply for other visas in Australia.
4. On 5 February 2025, the First Respondent filed an amended response to the Applicants' originating application and sought that the judicial review application be summarily dismissed pursuant to r.13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) including because the Applicants were not subject of an approved nomination, had no reasonable prospects of successfully prosecuting the proceeding and the proceedings were futile.
5. On 24 February 2025, the First Respondent filed an affidavit and submissions in support of summary dismissal. The affidavit of a solicitor deposed to the delegate's refusal of the nomination application on 16 June 2017 and the Tribunal's affirmation of that decision on 10 May 2019.
6. On 19 March 2025, the First Respondent filed an affidavit which annexed a document otherwise missing from the court book.
7. On 26 March 2025, the Applicants filed written submissions in opposition to summary dismissal.
8. On 27 March 2025, the First Respondent filed an affidavit of a solicitor which deposed to the same matters subject of the 24 February 2025 affidavit (referred to at paragraph 19 above).
9. On 27 March 2025, an affidavit of the First Applicant was lodged which annexed a letter purportedly from the director of the sponsor. On the face of that letter the director stated that, during the course of the Tribunal review of the nomination refusal decision and nearly three years after the application was made, the Tribunal had requested then current financial records and other documentation of the sponsor's business, at which time the business had been sold and it was impracticable to provide the documents to the Tribunal.
10. On 28 March 2025, the First Respondent's summary dismissal application proceeded to hearing before a Registrar of the Court. Both parties attended the hearing by Microsoft Teams. The First Applicant represented himself and was provided assistance of a Hindi interpreter. The First Respondent was represented by a solicitor advocate. The Registrar made orders dismissing the Applicants' substantive application pursuant to r.13.13(a) of the Rules (registrar's decision). The First Applicant was ordered to pay the First Respondent's costs in accordance with the scale amount for proceedings concluded at an interlocutory stage. A notation was included on the orders in terms that "the first applicant informed the Court that he is divorced from the second applicant and that she did not travel to Australia with him".
11. On 4 April 2025, the First Applicant lodged an application for review of the Registrar's decision which was accepted for filing on 9 April 2025 (registrar review application). It is that application with which these reasons are concerned.
12. On 2 May 2025, procedural orders were made fixing the registrar review application for hearing before the Court as presently constituted. The parties were invited to file any additional affidavits and written submissions in support of their respective cases.
13. On 19 May 2025, the First Applicant lodged an application in a proceeding by which he sought leave to file an amended application for judicial review and a stay of the registrar's decision pending determination of the interlocutory application in a proceeding. The interlocutory application was accompanied by a further two affidavits of the First Applicant: one which deposed to the need for a stay of the registrar's decision and another which deposed to the basis for the request to amend the substantive application for judicial review.
14. On 27 May 2025, the First Respondent filed an affidavit which deposed that according to records obtained by the First Respondent, the Second Applicant was not currently in Australia and that she has never held and does not hold any Australian visa which would permit her entry into Australia.
15. On 27 May 2025, the interlocutory application was heard by the Court as presently constituted. The First Applicant represented himself and was provided assistance of a Hindi interpreter which was not ultimately required. The First Respondent was represented by a solicitor advocate. Orders were subsequently made which permitted the Applicants to file and serve an amended application by 29 May 2025 and for the First Respondent to file and serve an amended response to that amended application by 3 June 2025.
16. On 28 May 2025, a representative of the First Respondent confirmed in writing that there was not an imminent risk of the First Applicant being removed from Australia before these judicial review proceedings were finalised given that the First Applicant is the holder of a bridging visa.
17. On 30 May 2025, the First Applicant filed an amended substantive application for review of the Tribunal's decision, which identified 6 points, expressed by the following headings:

A. Jurisdictional Error: Misapplication of Clause 186.223

B. Procedural Unfairness

C. Futility of Remittal

D. Summary Dismissal Threshold Not Met

E. Leave to Amend Application

F. Relief Sought

1. Accompanying the amended application was an affidavit of the First Applicant filed on 30 May 2025 wherein the First Applicant expanded upon those 6 points in the amended application.
2. On 3 June 2025, the First Respondent filed an affidavit of a solicitor which deposed that the ABN associated with the sponsor's nomination had been cancelled from 30 June 2017. Later that day the First Applicant lodged an outline of submissions in direct response to that affidavit.
3. In addition to the above, the First Respondent also filed an affidavit of service dated 26 March 2025 and a Court Book dated 25 February 2025. The First Respondent elected not to file a written response to the Applicants' amended substantive application dated 30 May 2025 given the late allowance of leave to amend the pleadings, but continued to rely on their previous response of 5 February 2025 and pressed their application for summary dismissal.
4. On 5 June 2025, the registrar review application was heard before the Court as presently constituted. The First Applicant represented himself and was provided assistance of a Hindi interpreter which was not ultimately required. The First Respondent was represented by a solicitor advocate.

SHOULD THE APPLICATION FOR SUMMARY DISMISSAL BE ALLOWED?

1. The question of whether the substantive application ought to be summarily dismissed is required to be considered on a de novo basis.
2. Section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides:

143 Summary judgment

(1) The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is prosecuting the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2) The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.

(5) This section does not apply if the Federal Circuit and Family Court of Australia (Division 2) is exercising jurisdiction under the Family Law Act 1975.

13.13 Disposal by summary dismissal

The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

(b) the proceeding or claim for relief is frivolous or vexatious; or

(c) the proceeding or claim for relief is an abuse of the process of the Court.

1. At the outset, it is worth noting that the task on judicial review is not to undertake a general review of the Tribunal's decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia [1995] HCA 58; [1995] 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) as cited in BIJ18 v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 443 (Kelly J) at [19]-[20].
2. In considering an application for summary dismissal, the Court is concerned with whether the case raises a real or genuine dispute that might reasonably be resolved in an applicant's favour as distinct from the identification of jurisdictional error in the Tribunal's decision: AJB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 368 (Judge Given) at [33] and the cases cited therein.
3. The onus is on the party seeking the summary dismissal to persuade the Court that the applicant has no reasonable prospects of success.
4. The consideration of the Court proceeds on the basis of the First Respondent's application for summary dismissal, which remained pressed following the grant of permission to the Applicants to amend the grounds of their substantive application for judicial review. As it were amended, the 6 points of the Applicants' amended application are properly characterised as a combination of grounds of judicial review, submissions and responses including as to the First Respondent's foreshadowed application for summary dismissal.
5. There are a series of objective, incontrovertible facts in the present case that together provide a complete answer to the question of whether any or all of the grounds of the amended application raises a real or genuine dispute that might reasonably be resolved in the Applicants' favour.
6. First, the matter of the delegate's nomination refusal decision which was subsequently affirmed by the Tribunal (and has not been subject of an application for judicial review) is a separate matter to that which is presently before the Court. The Applicants have no standing to seek judicial review of the nomination refusal decision and the entity that did have such standing is no longer a registered business which no longer has standing to seek judicial review in a court.
7. Second, in the context of the Tribunal review of the delegate's visa refusal decision, the fact of the (unchallenged) Tribunal affirmation of the nomination refusal decision was a relevant and determinative factor. Put another way, the Tribunal was correct to apply cl.186.223 of the Regulations as it did in finding that the delegate's visa refusal decision must be affirmed for want of the First Applicant being subject of an approved nomination.
8. Third, the arguments were not adequately developed but even if there were a basis to find a denial of procedural fairness, the question of futility would render such finding nugatory. That is because at least the First Applicant was required to establish that he was subject of an approved nomination at the time of application and at the time of the Tribunal's decision. In circumstances where the First Applicant accepts that he does not have a valid employer nomination and the nominator named in his employer nomination visa application no longer exists, there would be no utility in remittal of the matter for redetermination because the Tribunal would be bound to make the same decision and refuse the Applicants' employer nomination visa.
9. For completeness, there was also no obligation on the Tribunal to refer the matter for ministerial intervention and that is not a reviewable decision: as expressed in AFG20 v Minister for Immigration & Anor [2020] FCCA 1361 (DJC Mercuri) at [121] - [124] citing Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ) at [24].

1. For the above reasons I find that the registrar's order dismissing the original application of 28 March 2025 be vacated and the application as subsequently amended on 30 May 2025 ought be dismissed pursuant to r.13.13 of the Rules. In addition to the costs ordered by the registrar on 28 March 2025, it is reasonable that the First Applicant pay the First Respondent's costs of this proceeding fixed in the sum of $2,500 and I will order accordingly.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.