Patel v Minister for Immigration and Citizenship [2026] FedCFamC2G 492

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. Before the Court is an application in a proceeding filed on 11 February 2026 seeking to set aside orders made on 28 January 2026 dismissing an application for judicial review on the basis of non-appearance pursuant to r.22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules).
2. The Applicants are a family of four, citizens of India who arrived in Australia on 22 February 2019 following previous visits. By their substantive application, they sought review of a decision of the then Administrative Appeals Tribunal affirming an administrative decision to refuse a regional employer nomination (permanent) (class RN, subclass 187) visa to the First Applicant and his three named family members.
3. For the reasons that follow, the application must be dismissed.

1. On 30 November 2017, the First Applicant lodged an application for a regional employer nomination (permanent) (class RN, subclass 187) visa in the direct entry stream. The other Applicants, who are the First Applicant's wife and two children, sought to meet the secondary criteria as members of the same family unit. The First Applicant sought to meet the criteria for the visa on the basis of proposed sponsorship by EZ Finance and Accounting Pty Ltd.
2. On 8 May 2019, the employer nomination application was refused. There is no evidence before the Court to indicate that the nomination decision is under review.
3. By email of 8 May 2019, the Department of Home Affairs (as it then was) (Department) invited the First Applicant to comment on the information that the nomination submitted to the Department by EZ Finance & Accounting Pty Ltd listing the First Applicant as their nominee had been refused and invited the First Applicant to respond within 28 days. The invitation was sent to his then migration agent. There was no response to that invitation, by or on behalf of the First Applicant, by the requested time or at all.
4. On 11 June 2019, a delegate of the First Respondent refused the First Applicant's visa on the basis that the nomination had not been approved, and the First Applicant did not meet cl.187.233 of the Migration Regulations 1994 (Cth) (Regulations). The Second, Third and Fourth Applicants were therefore unable to meet the secondary criteria in cl.187.311 of the Regulations, which required them to be members of the family unit of a person who had satisfied the primary criteria.

1. On 24 June 2019, the Applicants applied to the then Administrative Appeals Tribunal (Tribunal) for review of the delegate's decision. As part of that application, the Applicants gave details nominating another migration agent (Migration Agent) as their representative.
2. On 10 February 2020, an invitation to attend a hearing before the Tribunal on 18 March 2020 was sent to the Applicants at the nominated email address for their Migration Agent. By that invitation, the Applicants were invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
3. On 11 March 2020, a rescheduled hearing time on 18 March 2020 was notified to the Applicants at the nominated email address for their Migration Agent.
4. On 18 March 2020, the Tribunal contacted the First Applicant some 15 minutes prior to the hearing commencement time. The Tribunal's case note recorded that:

(a) the First Applicant stated that his Migration Agent had submitted a request for postponement of the hearing, on the morning of 17 March 2020;

(b) no such request had been received by the Tribunal; and

(c) the First Applicant stated he was too sick to proceed with the hearing by phone on that day, before hanging up the telephone.

1. Also on 18 March 2020, the Tribunal again contacted the First Applicant some 6 minutes prior to the hearing commencement time. The Tribunal's case note recorded that the First Applicant confirmed that as the Tribunal was unable to postpone, he wished to waive the hearing and proceed with the decision in the absence of a hearing.

1. On 18 March 2020, the Tribunal affirmed the delegate's decision.
2. The Tribunal set out the background to the matter before it, including the communications from the Applicants' Migration Agent and the lack of any response to the invitation to comment: at [1]-[11].
3. The Tribunal concluded that the First Applicant was properly invited to a hearing in accordance with s.379A(4) of the Migration Act 1994 (Cth) (Act) and had received 2 reminders of the hearing - 5 business days and 1 business day before the hearing: at [10].
4. The Tribunal observed that the issue before it was whether there was an approved nomination capable of meeting cl 187.233(3) of the Regulations. It found that there was not. Specifically, the Tribunal found that, on the evidence before it, the position to which the application related was not the subject of an approved nomination at the time of the Tribunal's decision. Accordingly, the Tribunal found that cl 187.233 of the Regulations was not met: at [12] to [18].
5. The Tribunal observed that the Applicants had only sought to satisfy the criteria for grant of the visas in the direct entry stream and that no claims had been made in respect of other visa streams. The Applicants had not provided any information or documents to the Tribunal. As the requirements that needed to be met in seeking the visas had not been met, the Tribunal found that it was required to affirm the decision under review: at [21].
6. The Tribunal also found that the secondary Applicants were therefore not able to satisfy the criteria and therefore they were refused visas as secondary Applicants.

1. On 14 April 2020, the Applicants commenced these proceedings for judicial review of the Tribunal's decision by filing an originating application and an affidavit of the First Applicant affirmed 9 April 2020. The substantive application listed 8 points under the heading "Grounds of application" as follows:

1. I make the declaration by virtue of my best knowledge and understanding;

2. The matter to be considered in Federal Circuit Court appeal is true;

3. In the decision record sent to me by Tribunal on 20th March 2020, Tribunal affirms the decision not to grant the visa to me on the basis that, I did not appear before the Tribunal on 18th March 2020 to give evidence and present arguments;

4. The Tribunal has upheld the decision of the delegate of the Minister for Home Affairs through review application 1916538 without considering the material facts of the matter and circumstances and affirmed the decision;

5. Tribunal denied that a request for postponement of hearing in the morning of 17 March 2020 was received from my Migration Agent. Being too sick, I could not attend the hearing and applied for the postponement of my hearing but Tribunal denied that any such request was made to them and made a decision in my absence;

6. I strongly believe that I have not been served justice as I could not provide arguments in the support of my application due to not being present in the hearing and I was not given time in spite of being too sick on the day of hearing;

6. The tribunal did not adopt principles of natural justice while disposing off my review application;

7. The Tribunal committed jurisdictional error while deciding my matter before it;

8. The tribunal hearing being de novo, the Tribunal did not consider fresh circumstances of my case.

(sic.)

1. On 23 April 2020, the First Respondent filed a response.
2. On 12 August 2020, the First Respondent filed a Court Book.
3. On 14 November 2025, procedural orders were made fixing a program for filing of materials and listing the matter for hearing at 10.00am on 28 January 2026. Those orders included notations that:

(a) The parties are taken to be on notice that costs typically follow an application in this Court. If the matter proceeds to final hearing, the unsuccessful party may be ordered to pay an amount to the successful party pursuant to Schedule 2, Part 3, Division 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules); and

(b) In the event of any non-compliance with these orders or failure to attend the hearing, the Court may dismiss the application for default or determine the application on what is before the Court pursuant to rr.5.10, 5.11 and/or 22.05 of the Rules.

1. By those orders, the Applicant was to file and serve an outline of written submissions; and any additional evidence on which the Applicant seek to rely by 4.00pm on 7 January 2026. The Applicants did not avail of this opportunity.
2. On 25 November 2025, the First Respondent filed an updated response.
3. On 15 January 2026, the First Respondent filed an outline of written submissions; a list of authorities on 19 January 2026; and an affidavit of service off a solicitor of the First Respondent on 27 January 2026 affirmed on same day.
4. On 28 January 2026, there was no appearance for or on behalf of the Applicants at the scheduled hearing. The First Respondent was represented by a solicitor advocate who applied for the matter to be dismissed by reason of non-appearance and an award of costs. Being satisfied that the Applicants had been properly notified of the proceedings at their nominated email address for service, the Court dismissed the substantive application under r.22.04(1)(a)(i) of the Rules with costs fixed in the sum of $6,150.
5. On 11 February 2026, the Applicants filed this application for reinstatement of the substantive application with an accompanying affidavit of the First Applicant affirmed on 4 February 2026.
6. At the hearing of the reinstatement application on 25 March 2026, the First Applicant represented himself and the First Respondent was represented by a solicitor advocate. Both parties appeared by electronic link, which was facilitated on request of the First Applicant because he now resides in Perth.

1. The power to set aside orders made in the absence of a party is now contained in r.24.04 of the Rules.
2. The principles of reinstatement are uncontroversial, having been considered in a number of relatively recent decisions in this Court including: DMH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1194 (Given J) and Shahzad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 138 (Laing J).
3. The power is discretionary. It requires the Court to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 (Flick, Robertson and Lee JJ) at [50]-[52]. On the principles derived from MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (Ryan J) at [7] and CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344 (Mortimer J as Her Honour then was) at [4], this will typically require consideration of the following non-exhaustive factors:

(a) Whether there is a reasonable explanation for non-appearance at the hearing and any delay in applying for reinstatement;

(b) Any prejudice to the other party; and

(c) Whether the grounds identified in the substantive application have reasonably arguable prospects of success: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] ( Mortimer J as her Honour then was) and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475 (Collier, Rangiah and Derrington JJ).

1. In the present case, the reinstatement application was filed within the prescribed 21 day period and without delay.
2. By the reinstatement application and supporting affidavit of the First Applicant affirmed 4 February 2026, he explained his non-appearance at the hearing on 28 January 2026 as follows:

...

2. I am citizen of India.

3. I filed an Application before the Federal Circuit and Family Court of Australia against the decision of the Administrative Review Tribunal with my family members.

4. My application was listed before the Hon Judge Mansini on 28th of January 2026 for final hearing.

5. I was not well on the day of hearing. I completely miss my hearing due to my illness. My application was already dismissed by the Hon Judge Mansini.

6. I have received Court order by email. I seek assistance from my friend who explained me what had happened.

7. Hon Judge dismissed my application for non-appearance. Annexure -A is a decision of the Hon. Judge Mansini dated 28th January 2026.

9. I am requesting Honourable court to relist my dismissed application and give me opportunity.

9. I am having young family and I am obliged your honour for your consideration.

(sic.)

1. The First Applicant separately emailed to chambers a medical certificate, dated 4 February 2026, which certified his unfitness for work from 25 January to 4 February 2026 inclusive. At the reinstatement hearing, in response to a question of the Court, the First Applicant accepted that the medical certificate did not say that he was not fit or of medical incapacity to attend a court proceeding on 28 January 2026 (as distinct from "work"). The First Applicant did not elaborate on the nature of his condition other than to tell the Court that, at the time of the hearing, he was unwell and unable to send an email.
2. Also at the reinstatement hearing, the First Applicant confirmed that he had not attempted to correspond with the Court or my chambers to request an adjournment of the hearing or another hearing date, before the hearing was scheduled to and did take place on 28 January 2026.
3. I am not persuaded that the proffered explanation reasonably explains the Applicants' non-appearance at the hearing on 28 January 2026. That is particularly so when regard is had to the facts that the Applicants had been on notice since the listing notice of 14 November 2025, were cautioned about the consequences of failure to attend the hearing by notations on orders attached to that listing notice and by their own admission did not make any attempt to communicate with the Court in advance of the hearing to request an adjournment. The absence of reasonable explanation weighs against the exercise of the discretion in the present case.

1. Beyond the public interest in finality of decisions, there is no particular prejudice specific to the present case that can not be rectified by a costs order.
2. I consider the absence of prejudice to be a neutral factor in the present case.

1. As will be apparent, the substantive application listed 8 points under the heading "Grounds of application". Of those, 2 points constituted an articulation of allegations of jurisdictional error and are addressed below. The remainder were submission or background and could not succeed by way of judicial review.
2. In respect of the substantive application, it is useful context to appreciate that in order to succeed in the visa application the First Applicant needed to satisfy cl.187.233 of Schedule 2 to the Regulations which relevantly provided as follows:

187.233

(1) The position to which the application relates is the position:

(a) nominated in an application for approval that:

(i) subparagraph 5.19(4)(h)(i); or

(ii) subregulation 5.19(4) as in force before 1 July 2012; and

(iii) seeks to meet the requirements of subregulation 5.19(12); and

(aa) in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and

(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

(2) The person who will employ the applicant is the person who was the nominator in the application for approval.

(3) The Minister has approved the nomination.

(4) The nomination has not subsequently been withdrawn.

(4A) Either:

(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

(b) )it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

(5) The position is still available to the applicant.

(6) The application for the visa is made not more than 6 months after the Minister approved the nomination.

1. By the fourth point in the substantive application, the Applicants contend that the Tribunal affirmed the delegate's decision without considering the material facts of the matter and circumstances. There were no particulars or further information provided by way of illumination of the alleged error.
2. The First Respondent correctly emphasised that the single dispositive issue before the Tribunal was whether there was the existence of an employer nomination to meet the criteria under cl.187.233 as necessary for the grant of the visa. Without this, the Tribunal was correct to conclude that the only decision available to the Tribunal was to affirm the delegate's decision to refuse the First Applicant's visa application and, in turn, that of his nominated family members.
3. There is no error of jurisdiction established by this ground.

1. By the sixth point in the substantive application, the Applicants contend that the Tribunal denied natural justice because he could not present his arguments at a hearing before the Tribunal and was not given time in circumstances where he was unwell on the day of the hearing.
2. It were not understood to be controversial in these proceedings that the Applicants were invited to a hearing before the Tribunal, which invitation included an opportunity to provide all documents they wished to rely on. The Applicants were also sent 2 reminders of the hearing by SMS before the scheduled hearing time.
3. The First Applicant initially told the Tribunal staff member on 18 March 2020 and continued to maintain at the time of reinstatement hearing before this Court that his representative had submitted a request of postponement the day prior to the hearing, on 17 March 2020. There was no proof or contemporaneous record of such request and the Court Book of documents on the relevant departmental file did not include such record. Rather, the documents reflect that the First Applicant orally requested the Tribunal to proceed to determine the matter without a hearing.
4. On what is before the Court, I am not able to find that the Tribunal failed to comply with its statutory obligation to invite attendance at a hearing under s.360 of the Act (as in force at the relevant time) or a denial of natural justice.
5. There is no error of jurisdiction established by this ground.

1. The First Respondent submitted that, even if there were an error on the part of the Tribunal, it would have been immaterial to the outcome because there was no realistic possibility that an adjournment and postponement of the hearing would have resulted in a different outcome. Absent an employer nomination, I agree.
2. It would be futile to remit the matter to the Tribunal for reconsideration, such that relief would not be granted as considered in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 at [27]- [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

1. There were no other considerations brought before the Court as relevant to whether to exercise the discretion to reinstate the substantive application in this matter.

1. Weighing the relevant considerations addressed in the above, I am not persuaded it is appropriate or in the interests of justice that the substantive application be reinstated.

1. For the above reasons, the reinstatement application is dismissed.
2. The First Respondent sought costs in the amount of $3,400 which is less than contemplated at Schedule 2 of the Regulations for an interlocutory hearing. In addition to the costs at order 4 of 28 January 2026, I consider this a reasonable amount and will order that the First Applicant pay the costs in the amount of $3,400.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.