Background
Tejalben Bhaumik Patel, an Indian national, applied in October 2020 for an Employer Nomination (Subclass 186) visa sponsored by RDMP Pty Ltd, with her husband applying as a secondary applicant. In December 2022, a delegate of the Minister refused both visas on the basis that the first applicant did not satisfy cl 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) — specifically, that she was not the subject of an approved nomination, as the sponsor’s nomination application had itself been refused. The applicants sought review before the then Administrative Appeals Tribunal.
During the Tribunal review, the applicants were sent a notice under s 359A of the Migration Act 1958 (Cth) in April 2023, inviting them to comment on information indicating that the Tribunal lacked jurisdiction to review the nomination refusal. After seeking and receiving a partial extension of time, the applicants failed to respond by the extended deadline of 24 May 2023. The Tribunal accordingly found they had lost their entitlement to appear under ss 359C and 360(3), and in May 2023 affirmed the delegate’s decision. Notably, the sponsor had also been deregistered in September 2022.
The applicants sought judicial review in the Federal Circuit and Family Court of Australia. A registrar summarily dismissed the application in July 2024 for having no reasonable prospects of success. The primary judge upheld that dismissal in October 2024, finding no jurisdictional error in the Tribunal’s decision and noting that remittal would in any event be futile given the absence of an approved nomination and the sponsor’s deregistration. The applicants then sought an extension of time and leave to appeal to the Federal Court, filing two days outside the 14-day time limit.
The Court’s Holding
Justice Beach granted the applicants a two-day extension of time given the brevity of the delay, but refused leave to appeal. To obtain leave, applicants must show both that the primary judge’s decision is attended by sufficient doubt to warrant reconsideration and that substantial injustice would result if leave were refused. The Court found neither condition satisfied.
The Court examined each of the seven proposed grounds of appeal and found all without merit. Grounds relating to visa criteria and the construction of cl 186.223 failed because, without an approved nomination, there was no foundation upon which the criteria could be met — a point the primary judge had correctly addressed. The procedural fairness ground (ground four) failed because the Tribunal had validly issued the s 359A invitation and was entitled to refuse a further extension; when the applicants did not respond, they lost their right to appear by operation of the Act. A ground alleging unfairness regarding the sponsor’s fitness was held misconceived because the applicants lacked standing to challenge the nomination refusal.
The Court further held that even if any error could be established, remittal would be futile: cl 186.223 requires the position to be the subject of an approved nomination at a particular employer, the nomination refusal had not been judicially reviewed, and the sponsor was deregistered. The matter could only result in the same outcome on remittal. The application for leave to appeal was dismissed with costs fixed at $5,000.
Key Takeaways
- A Subclass 186 visa applicant cannot satisfy cl 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) where the sponsor’s nomination has been refused and no approved nomination exists — there is no pathway to approval regardless of the applicant’s own qualifications or work history.
- The Tribunal’s obligations under Division 5 Part 5 of the Migration Act 1958 (Cth) are satisfied by issuing a valid s 359A invitation; failure by an applicant to respond within the (extended) deadline triggers loss of the right to appear under ss 359C(2), 360(3) and 363A, and this does not constitute a denial of procedural fairness.
- A visa applicant has no standing to challenge a separate decision to refuse the employer’s nomination — that decision is made in distinct proceedings and the applicant cannot collaterally attack it in judicial review of the visa refusal.
- Where remittal would be futile — because the Tribunal would inevitably reach the same outcome — courts may and will take futility into account both in refusing leave to appeal and in declining to grant relief even if jurisdictional error were established.
Why It Matters
This decision reinforces the critical interdependence between employer nomination approvals and the Subclass 186 visa pathway. Practitioners advising employer-sponsored visa applicants must monitor not only the visa application itself but the underlying nomination, since a nomination refusal that goes unchallenged will be fatal to the visa regardless of the applicant’s merits. The case also illustrates the tight procedural timetables in Tribunal proceedings: the applicants’ failure to respond to a s 359A invitation — even while awaiting an FOI response — extinguished their right to a hearing with no avenue for recovery.
More broadly, the judgment underscores the high bar for leave to appeal interlocutory summary dismissal decisions in migration matters. Where the legal foundation for the underlying claim is absent (here, no approved nomination) and the sponsoring employer is deregistered, courts will treat remittal as futile and decline to expend further judicial resources on an appeal that could not produce a different practical outcome for the applicants.