Alex Gyprock Pty Ltd v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1185

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Alex Gyprock Pty Ltd v Minister for Immigration and Citizenship [2025] FedCFamC2G 1185

File number(s):	SYG 1732 of 2021 SYG 1910 of 2021
Judgment of:	JUDGE LAING
Date of judgment:	30 July 2025
Catchwords:	MIGRATION – related applications for judicial review of decisions of the Administrative Appeals Tribunal – where the Tribunal’s review of a visa application refusal depended upon the outcome of its review of a nomination refusal decision – whether the Tribunal misunderstood centrally relevant contentions made by the applicant in the nomination refusal matter – application dismissed
Legislation:	Migration Regulations 1994 (Cth) r 5.19
Division:	General
Number of paragraphs:	38
Date of hearing:	8 July 2025
Place:	Sydney
Counsel for the Applicants:	Mr P Berg
Solicitor for the Applicants:	SouthWest Migration and Legal Services Pty Ltd
Counsel for the First Respondent:	Mr D Rowe
Solicitor for the First Respondent:	HWL Ebsworth Lawyers
Second Respondent:	Submitting appearance, save as to costs

ORDERS

SYG 1732 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ALEX GYPROCK PTY LTD

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	30 JULY 2025

THE COURT ORDERS THAT:

1.The application filed on 13 September 2021, as amended, be dismissed.

ORDERS

SYG 1910 of 2021

BETWEEN:

FOO SHI LEE

Applicant

PEK YIN TAN
Second Applicant

ZHOU XUAN LEE

Third Applicant

ISAAC ZI XUAN LEE

Fourth Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	30 JULY 2025

THE COURT ORDERS THAT:

1.The application filed on 11 October 2021 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

1. Before the Court are two related applications for judicial review of decisions of the Administrative Appeals Tribunal (Tribunal) (as it was). In the first decision (SYG 1732 of 2021), the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) rejecting an application by Alex Gyprock Pty Ltd (Applicant) for approval of a nomination under r 5.19 of the Migration Regulations 1994 (Cth) (Regulations). In the second decision (SYG 1910 of 2021), the Tribunal affirmed a decision not to grant associated visas.

2. The visa review decision depended upon the outcome of the nomination review decision. The application in SYG 1910 of 2021 relied upon the contention that the nomination review decision was affected by jurisdictional error. The parties agreed that if such error were demonstrated in SYG 1732 of 2021, then the related judicial review application ought similarly to succeed. The parties agreed that if error were not demonstrated in SYG 1732 of 2021, then both applications to this Court would be dismissed.

3. The reasoning below, therefore, focusses upon the Tribunal’s decision in SYG 1732 of 2021 unless otherwise stated. For the following reasons, I have not been persuaded that the Tribunal’s decision in that matter was affected by jurisdictional error. It follows that the applications before the Court must be dismissed.

   BACKGROUND

4. The Applicant applied for approval of the nomination on 30 June 2017.

5. On 3 September 2018, the Delegate refused the application. The Delegate found that there was insufficient evidence of the capacity of the Applicant to provide full-time employment for the employee in question for at least 2 years. The Delegate therefore found that r 5.19(4)(d)(i) of the Regulations was not met.

6. On 11 September 2018, the Applicant applied to the Tribunal for review of the Delegate’s decision. On 29 July 2021, the matter was heard concurrently before the Tribunal with the related application of Mr Foo Shi Lee (Nominee), his wife (Ms Tan) and others.

7. On 12 August 2021, the Tribunal affirmed the Delegate’s decision.

   THE TRIBUNAL’S DECISION

8. The Tribunal identified the issue before it as whether the Applicant met the requirements for approval of the nomination set out in r 5.19(4) of the Regulations (at [19]).

9. The Tribunal summarised the background to the matter and the evidence before it at [20]-[40] of its decision, before reasoning at [41]-[48]:

   41.In assessing the applicant’s capacity to employ the nominee full time in the position for at least 2 years, the Tribunal has taken into consideration evidence provided by the applicant which includes the business’s financial statements, bank statements, information submitted to the ATO, the nominated salary amount, business expansion outline and advice from the applicant’s accountant.

   42.Whilst the evidence suggests that historically the applicant has maintained payroll and the nominee has received salary payments over the most recent last two financial years, evidence before the Tribunal shows that the nominee has received annual salary payments of approximately $98,000 and in 2021 $95,659. As these amounts are less than the nominated salary, the Tribunal has turned its mind to the financial capacity of the business to meet the nominated salary of $185,000 for at least two years.

   43.In making its assessment as to the capacity of the applicant to pay the nominated salary amount for at least two years, the Tribunal has taken into consideration the recent two years financial history of the business as reported in the financial evidence provided by the applicant to the Tribunal. The Tribunal notes evidence before it that the nominee’s salary for 2021 as recorded in the nominee’s tax return is $95,659. The applicant has provided to the Tribunal the company 2021 tax return which records gross income $629,296, total expenses of $629,296 and $0 profit. In the absence of financial statements prepared by the applicant’s accountant, the Tribunal accepts the Company tax return for 2021 financial year as contemporary evidence of the applicant’s financial position.

   44.During the hearing as indicated previously in this decision, the Tribunal raised with the applicant it’s concern that based on the 2019/2020 financial year financial statements that there was no evidence before it to demonstrate sufficient profitability, including cash and assets to meet the nominated salary amount of $185,000. The Tribunal has also considered the applicant’s 2021 Company tax return and bank statements in so far as whether the recorded nil profit, current assets of $15,712 and bank balance (as at 30 June 2021) are sufficient to cover the nominated salary for two years.

   45.Whilst the bank statement dated 30 June 2021, shows a balance of $12,112 there is no contemporary evidence before the Tribunal to support the current cash at bank held by the applicant that may be attributed to meeting the nominee’s salary. Whilst the Tribunal acknowledges the applicant’s bank statements that show the payment of salary to the nominee, the Tribunal notes the applicant’s evidence at the hearing attributing the irregular payments due to cash flow.

   46.The Tribunal notes the representative in their submission dated 5 August 2021 refers to the applicant’s 2021 profit being $15,167, however there is no corroborative evidence before the Tribunal to support this. The only indication of the applicant’s 2021 financial position is the 2021 Company tax return which records the applicant’s profit as $0. In the absence of recording a profit for the 2021 financial year, the Tribunal is of the view that this is not indicative of a profitable business.

   47.In the absence of corroborative evidence to support the current cash assets of the business, profitability and net equity, the Tribunal cannot be satisfied that the applicant currently holds sufficient liquidity to meet the payment of the nominated salary amount of $185,000 per annum for at least two years.

   48.At the hearing the applicant provided oral evidence that the business planned to reduce the number of sub-contractors and employ staff as a means of reducing expenses and increasing profitability, in order to meet her husband’s salary of $185,000. In submissions made to the Tribunal post hearing the applicant in the document titled ‘Business Expansion Outline August 2021’ states ‘Alex Gyprock Pty Ltd Pty Ltd will decrease its labour costs (subcontractors) once the Director Mr Lee secures permanent residency in Australia by replacing subcontractors with full time employees’. The Tribunal notes the applicant’s assertions however, there is no persuasive or corroborative evidence including financial forecasting, to support how this claim will in fact increase the applicant’s financial capacity in order to meet the nominated salary. The Tribunal therefore considers this evidence to be an assertion and not a guarantee and places little weighting on this assertion.

10. At [49], the Tribunal considered a letter that had been provided from the Applicant’s accountant opining that the business was “a going concern” with “the financial ability to meet the financial responsibilities involving the payment of an annual salary of $185,000 for one of its staff, Mr Foo Shi Lee”. However, the Tribunal observed that the information in the letter pertained to the financial position as of 30 June 2019. The Tribunal considered that the letter did not indicate the overall financial position of the Applicant at the time of its decision. In the absence of corroborating evidence, including in relation to contemporary liquidity, net equity and cash at bank, the Tribunal was not satisfied that the accountant’s advice provided a definitive indication of the business’s financial position and therefore placed little weight upon the advice (at [50]).

11. The Tribunal reasoned as follows at [51]-[56] of its decision:

    51.Having overall consideration of the evidence before it, the Tribunal is of the view that there is a lack of evidence that the Tribunal considers concrete and persuasive, to demonstrate the capacity of the applicant to meet the nominated salary of $185,000 per annum. As stated previously, the applicant's most recent financial statements (2019/20) and 2021 financial year company tax return, do not support the applicant's financial capacity to meet the additional payroll cost in order to pay the nominee the nominated salary of $185,000.

    52.In the circumstances, it is difficult to be satisfied that the applicant has the financial capacity to employ the nominee on a full time basis in the position for at least two years when the evidence before the Tribunal does not support how the applicant will meet the additional payroll expense in order to pay the nominee $185,000 per annum for at least two years.

    53.On the information before it and the reasons noted above, the Tribunal finds, it is not satisfied that applicant has demonstrated the financial capacity to pay the full-time salary for the nominated position for at least two years. Accordingly, the Tribunal has formed the view that the applicant has not demonstrated that the nominee will be employed as required for the minimum period of two years on a full-time basis as specified in the Regulation. The Tribunal therefore finds the applicant does not satisfy the requirement in r.5.19(4)(d)(i).

    54.Accordingly, the requirements in r.5.19(4)(d) are not met.

    55.As the Tribunal has found the applicant does not meet r.5.19(4)(d) it is not required to consider the rest of the requirements as set out in r.5.19(4).

    56.For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

12. On the basis of the above, the Tribunal affirmed the Delegate’s decision (at [57]).

    APPLICATION FOR REVIEW

13. The applicant sought judicial review of the Tribunal’s decision through an application filed on 13 September 2021. The matter remained in the central migration docket for some years before being allocated to my docket more recently and listed for hearing.

14. The Applicant ultimately relied upon an amended application filed on 8 July 2025. This was on the understanding that ground 2 was not pressed and, instead, the Applicant would rely upon the version of ground 2 articulated in written submissions.

    Ground 1

15. Ground 1 was expressed as follows in the amended application:

    1.1The central issue was the capacity of the applicant to pay the nominated base rate and guaranteed earnings of $185,000 per annum and provide the employee with full-time employment for at least 2 years.

    1.2The applicant told the Tribunal that upon hiring the employee it would use fewer sub-contractors. That step would put the applicant in a financial position to pay $185,000 per annum to the employee.

    1.3The applicant told the tribunal that its company directors held temporary visas only. The applicant could not offer positions of permanent employment due to the directors’ visa status. Instead of permanent employees the applicant was forced to recruit subcontractors at excessive cost.

    1.4Once the directors held permanent visas, then the applicant could offer permanent employment. The consequential savings from employment costs would put the applicant in a financial position to pay $185,000 to the employee.

    1.5The tribunal did not understand the applicant’s plan to save costs. The plan is centrally relevant. It describes the logic and mechanism by which the applicant will be able to afford to pay the $185,000.

    1.6By failing to understand a centrally relevant contention, the tribunal has erred.

16. The Applicant relied upon [24] of the Tribunal’s decision, which was as follows:

    24.At the hearing the Tribunal discussed with the applicant the delegate’s decision of 3 September 2018 and invited the applicant to comment. The applicant told the Tribunal that because they used sub-contractors this reduced the profitability of the business and this is why the business’s finances were not that good. The applicant intends after the nominee is granted a visa, to engage fewer sub-contractors and employ Australian citizens and permanent residents as this will reduce subcontracting costs and contribute to the business’s profitability.

17. The Applicant submitted that this misunderstood the Applicant’s argument, which was that the grant of permanent visas to the Nominee and his wife would allow them to make employment offers with the advantage of permanency. Given that condition of employment, it was contended that the business would be able to recruit and retain full-time employees: CB 346 [1] and [3]; CB 545 [13].

18. The Applicant submitted that the Tribunal had instead misunderstood the intention as being to “employ Australian citizens and permanent residents as this will reduce subcontracting costs and contribute to the business’s profitability” (at [24]). This was said to have overlooked the substance of the plan and to have also misunderstood the Applicant to have made “a contention that is lacking business sense or reason”.

19. I accept the Minister’s submission that there are a number of reasons why ground 1 is unable to succeed.

20. The first is that the Tribunal’s reasons at [24] simply recorded evidence given to the Tribunal. The transcript of the Tribunal hearing demonstrates that Ms Tan gave evidence to the Tribunal that “[a]fter my husband visa (indistinct), I would like to create my own team and then to hire the local citizen or the permanent resident to complete all the project ourself” (page 12). Ms Tan further explained (at page 14) that they had tried to “hire so many of the local citizen or the permanent resident to work with us”, but that such workers had not felt secure on account of the visa status of Mr Lee and Ms Tan. In her statutory declaration, Ms Tan stated that the plan was to “replace the subcontractors as much as we can and hire Australian staff on a permeant basis” which it was said would “reduce the amount of money we spend on labour” (CB 346-347). An organisational chart in a document entitled “Business Expansion Outline” (CB 520) further depicted “post visa grant” proposed new positions marked “Australian PR/citizen”.

21. The second is that even if (consistently with the above evidence) the Tribunal understood the plan to involve the employment of permanent residents or Australian citizens, it has not been demonstrated that such a proposal was “lacking business sense or reason”. The Tribunal may have understood this to reflect a practical reality that it may be those with a permanent entitlement to work in Australia who would be interested in permanent employment, but were unwilling to be employed by a company whose operations were not assured of permanency (due to the visa status of those directing it). Such an interpretation would not be illogical. It would have been consistent with the case that was presented to the Tribunal by the Applicant. In any event, it has not been demonstrated that the Tribunal relied upon the contended illogicality in any manner adverse to the Applicant.

22. The third reason that the ground cannot succeed is that a fair reading of the Tribunal’s reasons demonstrates that the Tribunal understood the case being put forward by the Applicant. At [25], the Tribunal considered that the Applicant had told the Tribunal that they had “attempted to employ locals but could not attract workers willing to work for an employer, who cannot provide security due to the nominee’s current uncertainty over his visa status”. At [48], the Tribunal described the proposal as being that “the business planned to reduce the number of sub-contractors and employ staff as a means of reducing expenses and increasing profitability”. This articulation of the Applicant’s case was consistent with the evidence given at CB 120-121, 346, 520 and 545, as well as at the hearing before the Tribunal (particularly pages 12 and 14 of the transcript).

23. The problem identified by the Tribunal was not that the plan was illogical, or was other than had been submitted by the Applicant. The problem identified by the Tribunal was that it considered that what had been put forward by the Applicant in this regard was, effectively, based upon “assertion” (at [48]). The Tribunal considered that there was “no persuasive or corroborative evidence including financial forecasting, to support how this claim will in fact increase the applicant’s financial capacity in order to meet the nominated salary” (at [48]).

24. In oral submissions, the Applicant placed emphasis upon use of the word “how” in this paragraph, suggesting that the “how”, in terms of the plan put forward, had been misunderstood. However, a more natural interpretation of the Tribunal’s reasoning appears to be that the Tribunal understood but was not persuaded by the plan that had been put forward. This was in the absence of what it considered to be “persuasive or corroborative evidence” in support of the plan.

1. The Tribunal was not persuaded by the accountant’s letter that had been provided, given its identified limitations (at [49]-[50]). The Tribunal considered that there was “a lack of evidence” considered “concrete and persuasive” demonstrating the capacity of the Applicant to meet the nominated salary of $185,000. The Tribunal was concerned that the most recent financial statements in particular did not support the financial capacity of the Applicant to meet the nominated salary (at [51]).

2. It has not been demonstrated that this reasoning was logically closed to the Tribunal. As was submitted by the Minister, the evidence before the Tribunal had objective limitations. Although what was said to have been job advertisements were provided to the Tribunal, they did not (in and of themselves) demonstrate the effectiveness of the proposed plan. In any event, the Tribunal did not doubt that there may be difficulties in recruiting full-time employees. The Tribunal’s concern, rather, was that the ability to pay the nominated salary of $185,000 had not been demonstrated. This was considering the limitations the Tribunal had identified in the evidence before it (particularly the financial evidence).

3. Having regard to the above, I do not accept the Applicant’s contention that the Tribunal misunderstood its plan to save costs. Rather, the Tribunal appears to have not accepted that sufficiently persuasive evidence had been provided by the Applicant in relation to the plan.

4. It follows that ground 1 is unable to succeed.

   Ground 2

5. Ground 2, as articulated in the Applicant’s written submissions, contended that the Tribunal overlooked an argument that had been made by the Applicant.

6. The Applicant relied upon a table that had been submitted to the Tribunal, as follows:

7. The Applicant observed that it had submitted that the business had experienced steady growth in the years 2017 to 2019, with turnover and profit both increasing. The Applicant had submitted that the business was impacted in the years 2020 and 2021 by COVID, with a slight decrease in turnover and profit. The Applicant contended that its submission regarding the “trend of steady growth in the business favoured the conclusion contended for by the Applicant”. The Applicant contended that the Tribunal failed to consider this submission, instead confining its consideration to the two most recent financial years in 2020 and 2021 (at [42]-[43]).

8. However, as was observed by the Minister, a fair reading of the Tribunal’s reasons as a whole does not support the contention that the Tribunal confined itself to the 2020 and 2021 years. The Tribunal referred to financial evidence from other years in various parts of its decision, including [8], [9] and [16]. The Tribunal expressed at [17] of its decision that this evidence had been considered. The Tribunal also expressly had regard to the Applicant’s submissions regarding the effect of COVID, in contrast to previous years (at [26]). The Tribunal considered at [36] evidence suggesting a decrease in sales outside of the COVID-19 lockdown period. At [41], the Tribunal expressed that it had considered the various financial evidence that had been provided. This was not expressed to have been limited to the 2020 and 2021 financial years. At [49]-[50], the Tribunal considered the accountant’s evidence. The Tribunal identified limitations in this evidence, including its focus upon the position at 30 June 2019 without consideration of the financial position of the business at the time of its decision.

9. I accept that the Tribunal’s focus at [42]-[46] of its decision appears to have been upon the most recent two years of the Applicant’s financial history. However, I do not see how this is capable of demonstrating relevant error in relation to the Tribunal’s decision. As was submitted by the Minister, it is unsurprising that the Tribunal would have given particular consideration to the most recent years of the Applicant’s history. This was in a context where the Tribunal was assessing the ability of the Applicant to employ the Nominee on a full-time basis in the position for at least two years and was concerned that the evidence did not demonstrate how the proposed additional payroll expense would be met.

10. The Tribunal subsequently expressed at [51] that it did not consider there to be “concrete and persuasive” evidence demonstrating the capacity of the Applicant to meet the nominated salary. The Tribunal noted, in particular, its concerns regarding the “most recent financial statements”. However, the Tribunal’s reasons at [52]-[53] were more broadly expressed. The Tribunal expressed that it found it difficult to be satisfied that the Applicant had the financial capacity to employ the Nominee on a full-time basis in the position for at least two years, considering that “the evidence” before the Tribunal did not support how the additional proposed payroll expense would be met. The Tribunal concluded at [53], “[o]n the information before it”, that it was not satisfied that the requisite financial capacity had been demonstrated. In so reasoning, the Tribunal did not state that it had confined its consideration to the 2020 and 2021 years. I am not persuaded to draw an inference that it did so.

11. Having regard to the above, I am not persuaded that the Tribunal overlooked the Applicant’s argument regarding the growth trajectory of the business. A more likely interpretation of the Tribunal’s reasons is that it was not persuaded, notwithstanding the Applicant’s contentions, that the requisite financial capacity had been adequately demonstrated.

12. It follows that ground 2 is unable to succeed.

    CONCLUSION

13. For the reasons given above, I have not been persuaded that the Tribunal’s decision in SYG 1732 of 2021 was affected by jurisdictional error. The application for review of that decision must therefore be dismissed. As the application in SYG 1910 of 2021 depended upon a finding of jurisdictional error in SYG 1732 of 2021, it must similarly be dismissed.

14. I will hear from the parties in relation to costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       30 July 2025