Bacaj v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1198
•30 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bacaj v Minister for Immigration and Citizenship [2025] FedCFamC2G 1198
File number(s): ADG 285 of 2022 Judgment of: JUDGE GERRARD Date of judgment: 30 July 2025 Catchwords: MIGRATION – cancellation of Subclass 020 (Bridging B) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was bound to apply policy guidance in interpreting condition 8547 – whether the Tribunal was correct in not applying the policy guidance – unreasonableness – materiality – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 41(1), 41(2A), 116, 116(1)(g), 375A, 476, 499
Migration Regulations 1994 (Cth) Sch 1 regs 2.05(1), 2.05(4), 2.43(1)(oa), Sch 2 cl 020.611(5), Sch 8 condition 8547
Cases cited: Aziz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1397
Chow v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1459
DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43
Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v G (2019) 266 FCR 569
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
XA v Minister for Home Affairs (2019) 274 FCR 289
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submission/s: 4 April 2025 Date of hearing: 14 March 2025 and 16 May 2025 Place: Adelaide Counsel for the Applicant: William Mellor Solicitor for the Applicant: Work Visa Lawyers Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 285 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KRISTJAN BACAJ
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
30 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The application 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 GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming an earlier decision of the first respondent (the Minister) to cancel his Bridging B (Subclass 020) visa. For the applicant to succeed in this Court, he must establish that the Tribunal decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, his application cannot succeed.
BACKGROUND
On 1 December 2016, the applicant first arrived in Australia as the holder of a Working Holiday (Subclass 417) visa (Court Book (CB) 31, 69). The applicant was born in Albania but is an Italian citizen (CB 179).
The applicant applied for a Student (Subclass 500) visa which was refused by a delegate of the Minister on 20 December 2017. He was then granted a Bridging A visa whilst he sought review of that decision in the Tribunal (CB 69).
The applicant then applied for a Bridging B (Subclass 020) visa (the visa) to allow him to travel outside of Australia (CB 69). On 5 July 2018, he was granted the visa (CB 12, 66, 248). This visa was subject to condition 8547, which is set out in Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) as follows:
The holder must not be employed by any 1 employer for more than 6 months, without the prior permission in writing of the Secretary.
On 8 December 2020, a delegate of the Minister sent the applicant a Notice of intention to consider cancellation (NOICC) of his visa (CB 12-15). The NOICC stated that the ground for the visa cancellation as set out in section 116(1)(g) of the Migration Act 1958 (Cth) (the Act), when read with regulation 2.43(1)(oa) of the Regulations, appeared to be enlivened as a result of the applicant’s criminal conviction on 20 October 2020 (CB 13). Regulation 2.43(1)(oa) relevantly provides that certain bridging visas, including the one held by the applicant, may be cancelled if “the Minister is satisfied that the holder has been convicted of an offence against a law of … a State (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))” (CB 13).
On 15 December 2020, the applicant appointed a lawyer as his authorised representative who provided submissions in response to the NOICC, as well as material relating to his conviction (CB 17-61).
On 28 January 2021, a delegate of the Minister cancelled the applicant’s visa under s 116(1)(g) of the Act and reg 2.43(1)(oa) of the Regulations (CB 66-74). The delegate was ultimately satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa (CB 74).
On 4 February 2021, the applicant applied to the Tribunal for review of the delegate’s decision (CB 75-82). The applicant appointed a new lawyer as his authorised representative (CB 83).
On 10 August 2021, the Tribunal affirmed the delegate’s decision (CB 177-188).
The applicant sought judicial review of the Tribunal’s decision in the Federal Circuit and Family Court. On 24 November 2021, the Court remitted the matter to the Tribunal by consent, noting that the Tribunal had committed a jurisdictional error for failing to consider the applicant’s claim that he did not breach visa condition 8547 (condition 8547) (CB 189-190).
On 21 July 2022, the applicant provided further evidence and submissions to the Tribunal (CB 195-208).
On 12 August 2022, the applicant was invited to attend a hearing scheduled for 29 August 2022 (CB 211-213).
On 29 August 2022, the applicant attended the hearing with his lawyer and with the assistance of an Italian interpreter (CB 224).
After the hearing, on 5 September 2022, the applicant filed further submissions about whether he had breached condition 8547 and also attached ‘Schedule 8 Condition 8547 6-month work limitation’ from Procedure Advice Manual 3 (PAM3) (the policy guidance) (CB 228-240).
On 26 October 2022, the Tribunal affirmed the delegate’s decision to cancel the applicant’s bridging visa (CB 244-256).
On 8 November 2022, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.
THE TRIBUNAL’S TREATMENT OF CONDITION 8547
The issue in dispute between the parties relates solely to the Tribunal’s treatment of the policy guidance in respect of condition 8547 of Schedule 8 to the Regulations.
The Tribunal observed that, whilst holding the visa, the applicant was employed at different times by two employers for periods of seven and eight months respectively (at [33]). On that basis, the Tribunal observed that it appeared that the applicant had breached condition 8547 while on his bridging visa (at [34] of its reasons).
In considering whether the applicant had complied with condition 8547, the Tribunal in part reproduced the applicant’s pre-hearing submissions dated 25 June 2021 (at [36]):
I provide below an excerpt from submissions we made to the Tribunal on 25 June 2021 addressing this question. I note that the Tribunal’s failure to consider the following was the reason for the remittance of its decision from the Federal Circuit Court.
The applicant’s Bridging Visa B granted 5 July 2018 was subject to condition 8547 only. Condition 8547 requires that a visa holder only work for up to 6 months for any one employer subject to certain circumstances.
I note that the applicant mistakenly understood that he was subject to condition 8105 – the condition that he work no more than 40 hours per fortnight. The applicant therefore ensured that he complied with condition 8105 for the duration of the time he spent on the Bridging Visa B.
The applicant worked for Buna Painting from the date of grant of the Bridging Visa B until early January 2019 – a period of about seven months – and for Caruso Homes from 13 January 2020 until 11 October 2020 – a period of eight months.
During the hearing for this matter on 15 June 2021 Senior Member Millar stated that she considered the fact of the apparent breach to be a reason, or part of a reason, why the Tribunal may affirm the decision under review for the purpose of s359AA Migration Act 1958. On that basis, I acknowledge that the applicant’s Bridging Visa B was subject to condition 8547 but submit that certain circumstances existed in the applicant’s employment with both Buna Painting and Caruso Homes that meant he did not breach condition 8547 during the relevant periods of employment.
In changes to the policy considerations of condition 8547 announced by the Treasurer on 27 September 2016, and which entered effect on 27 March 2017 and since reissued in their current version on 18 October 2019, visa holders subject to condition 8547 are permitted to work for a single employer for up to 12 months provided the work is undertaken in different locations and work in any one location does not exceed 6 months.
In reviewing the history of condition 8547, the Tribunal found that the changes to the policy considerations in 2016 referred to by the applicant are related to Working Holiday visas (WHVs) only. The Tribunal also found that they were not in the form of changes to the condition, but rather, changes to the description of the Working Holiday program on the Department’s website and presumably its policy. As this condition was imposed on the applicant’s Bridging Visa B and not a WHV, the Tribunal found that any changes to a policy related to another visa was irrelevant (at [37]).
In having regard to the policy guidance referred to in the applicant’s pre-hearing submissions, the Tribunal found that this was irrelevant to the operation of condition 8547 in the context of the visa, as it was only relevant to the operation of the condition in the context of WHVs. The Tribunal found that there was no reason to assume that the ‘nuanced’ approach set out in the policy guidance document should be applied to other visas (at [38]-[39]).
Whilst acknowledging that the applicant was confused due to stress at the time, the Tribunal found that the applicant had breached the conditions of his visa and placed some weight in favour of cancelling the visa (at [40]).
In considering the applicant’s circumstances as a whole, the Tribunal affirmed the decision to cancel the applicant’s visa (at [86]-[87]).
APPLICATION TO THIS COURT
On 8 November 2022, the applicant filed an application for judicial review in this Court. Accompanying that application was an affidavit which annexed the policy guidance, written submissions provided to the Tribunal by the applicant’s representative dated 5 September 2022, as well as a copy of the Tribunal’s decision.
This matter was heard on 14 March 2025 and 16 May 2025, respectively.
At the first hearing date on 14 March 2025, the Court raised with the parties a number of issues that had not been addressed in written submissions, namely:
(a)the role of policy in the context of the decision under review and in the context of the issues raised by the Minister in this regard in written submissions filed on 28 February 2025; and
(b)the question of materiality.
At that hearing, applicant was granted leave to rely on the amended application filed on 12 March 2025, and both parties were granted leave to file further written submissions.
The amended application for judicial review filed on 12 March 2025 contains the following three particularised grounds of review (without alteration):
1.The Second Respondent’s decision-making process involved a jurisdictional error in that it failed to consider relevant material.
Particulars
a.The Second Respondent misinterpreted policy guidance material regarding the operation of visa Condition 8547 in erroneously finding that such policy guidance was not applicable in the context of a Bridging B (Subclass 020) visa (see [39] of its decision dated 26 October 2022 attached to this application via affidavit).
b.As a result of the Second Respondent's misinterpretation of the Condition 8547 policy guidance, it failed to consider the operation of Condition 8547 in the context of the Applicant's bridging visa and failed to consider the Applicant's claim that he complied with the Condition.
c.The Second Respondent's conclusion which resulted from the misinterpretation of the Condition 8547 policy guidance materially contributed to the Second Respondent's decision to exercise the discretion enlivened pursuant to s 116 of the Migration Act in a manner which was adverse to the Applicant.
2.The Second Respondent's decision-making process involved a jurisdictional error in that an error of law caused it to reach a mistaken conclusion.
Particulars
a.The Second Respondent misinterpreted policy guidance material regarding the operation of visa Condition 8547 in erroneously finding that such policy guidance was not applicable in the context of a Bridging B (Subclass 020) visa (see [39] of its decision dated 26 October 2022 attached to this application via affidavit).
b.As a result of the Second Respondent's misinterpretation of the Condition 8547 policy guidance, it incorrectly concluded that the Applicant had breached Condition 8547 and gave this conclusion 'some weight in favour of cancelling [the Applicant's] visa'.
c.The Second Respondent's conclusion which resulted from the misinterpretation of the Condition 8547 policy guidance materially contributed to the Second Respondent's decision to exercise the discretion enlivened pursuant to s 116 of the Migration Act in a manner which was adverse to the Applicant.
3.The Second Respondent's decision-making process involved a jurisdictional error in that it was unreasonable.
Particulars
a.The Second Respondent interpreted policy guidance material regarding the operation of visa Condition 8547 as applying only in the context of subclass 417 and 462 visas (see [39] of its decision dated 26 October 2022 attached to this application via affidavit);
b.The Second Respondent's restriction on the operation of the policy guidance material in particular (a) was unreasonable in that it was contrary to the plain terms of the policy guidance material which expressly extended to operate in the context of Bridging B (Subclass 020) visa.
c.As a result of the Second Respondent's misinterpretation of the Condition 8547 policy guidance, it incorrectly concluded that the Applicant had breached Condition 8547 and gave this conclusion 'some weight in favour of cancelling [the Applicant's] visa'.
d.The Second Respondent's conclusion which resulted from the misinterpretation of the Condition 8547 policy guidance materially contributed to the Second Respondent's decision to exercise the discretion enlivened pursuant to s 116 of the Migration Act in a manner which was adverse to the Applicant.
The materials before the Court include:
·The further amended application for judicial review filed by the applicant on 12 March 2025;
·The affidavit of Lochlan Reef MacNicol affirmed and filed on 8 November 2022 (taken as read and in evidence at the hearing on 16 May 2025);
·The affidavit of Trang Doan Vu affirmed and filed on 14 February 2025 (taken as read and in evidence at the hearing on 16 May 2025);
·A Court Book numbering 256 pages (marked as Exhibit 1);
·Written submissions filed on behalf of the applicant on 14 February 2025;
·Further written submissions filed on behalf of the applicant on 28 March 2025;
·Written submissions filed on behalf of the Minister on 28 February 2025; and
·Further written submissions filed on behalf of the Minister on 4 April 2025.
CONSIDERATION
As outlined above, the amended application for judicial review contains three particularised grounds of review. Each ground takes issue with how the Tribunal interpreted and approached the policy guidance said to relate to condition 8547. The applicant contends that the Tribunal’s conclusion that the policy guidance was not applicable to the applicant’s visa was erroneous because it failed to take into account relevant material, reached a mistaken conclusion and was otherwise unreasonable. The Minister’s principle contention in response was that the Tribunal was not bound to follow policy guidance.
For the reasons that follow, the Court is of the view that:
(1)Firstly, the Tribunal was not required to follow the policy guidance and accordingly there can be no jurisdictional error following from a failure to follow the guidance;
(2)Secondly, it is clear that the Tribunal did not follow the policy guidance because it specifically found it was not relevant to its decision. There was no error in the Tribunal so doing;
(3)Thirdly, contrary to the applicant’s submission, there was no error in the Tribunal’s understanding of the policy guidance;
(4)Fourthly, even if the applicant’s construction of the policy guidance is correct, it could not displace the clear legislative intent of the Regulations; and
(5)Finally, even if the applicant’s construction of the policy guidance is correct, it could not have assisted the applicant in any event.
In light of the above findings, none of the applicant’s grounds can succeed.
Was the Tribunal bound to apply the policy guidance?
The Minister raised as a threshold issue that it has long been established that the Tribunal is not bound to apply policy. In Vishnumolakala v Minister for Immigration and Multicultural Affairs [2006] FMCA 1209 at [27] (Vishnumolakala), the Court observed that policy guidance such as PAM3 is “no more than an advisory administrative guide to delegates” and that as a matter of law, it should not be afforded any higher status. Similarly, in Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25 at [36], the Full Court of the Federal Court expressly accepted that a failure to apply the Procedures Manual does not constitute an error of law. Further, where the policy guidance may be inconsistent or go beyond the legislation, a decision will not be foreclosed in the way suggested by the policy (see Chow v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1459 at [10]).
The Minister is correct to say that PAM3 must be read in light of the Regulations and not the other way around. It is a guide to decision-making only and does not have the legislative force of the Regulations. As observed by Justice Gray in the frequently cited passage from El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at [45] (El Ess):
In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs[2000] FCA 230; (2000) 61 ALD 641 at [28] – [29] and Soegianto v Minister for Immigration & Multicultural Affairs[2001] FCA 1612 at [15] – [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd(1986) 162 CLR 24 at 39 – 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.
The same view was taken by White J in Aziz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1397 at [20]-[21]. It is clear from these authorities that the policy guidance does not bind the Tribunal. Neither can it be said to be a mandatory consideration of the kind identified in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (see Vishnumolakala at [27]).
The applicant relies upon the last sentence of the passage from El Ess cited above at [35] of these reasons as authority for the proposition that a failure to apply guidelines may have some relevance in establishing error on the part of the Tribunal. Ultimately, the applicant accepted that the delegate was not bound to follow policy. However, the applicant contended that the delegate did purport to apply the policy but, in doing so, misconstrued that policy and it is that which led the delegate into error. In this respect, the applicant relied heavily on the following statement of Robertson J in Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438 at [89] (Jabbour):
It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else…
However, two things must be said about this passage in Jabbour. Firstly, it has been accepted that this passage is not authority for a general proposition that jurisdictional error will arise where a delegate does not comply with policy (see XA v Minister for Home Affairs (2019) 274 FCR 289 at [65]). Secondly, it has also been recognised that a “more radical” misconstruction or misunderstanding of policy is required to establish jurisdictional error in circumstances where a delegate is not bound to follow that policy than in circumstances where they are so bound (DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022 at [21] (DCM20)).
In light of the consistent guidance in the authorities canvassed above, the Court agrees that the Tribunal was not bound to follow policy (accepting, of course, the commonly cited principle in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)) that there is ordinarily good reason to follow policy). As such, there can be no jurisdictional error arising out of a failure to follow the policy absent some further impermissible act. Where it is alleged that error arises from a misconstruction or misapplication of policy, such a misconstruction must meet the level of a “more radical misconstruction” adverted to in DCM20.
Did the Tribunal purport to follow policy?
The Minister submitted that the Tribunal chose not to apply the policy guidance as it was not satisfied that it was relevant to the issue before it. It was open to the Tribunal to find that the policy the applicant cited did not change the effect of condition 8547, and that the policy was about WHVs, given that the policy repeatedly refers to working holiday makers. In the Minister’s submission, because the policy was not binding on the Tribunal, its application or rejection of policy cannot amount to jurisdictional error, irrespective of whether it was correct in not applying the policy guidance.
Counsel for the Minister echoed in oral submissions that, in actively considering the applicant’s submissions and policy, it was ultimately not persuaded that the policy was applicable. As there is no authoritative reading of policy, it is merely a finding of fact, it was reasonable and open to the Tribunal to find that the policy did not apply in the manner purported by the applicant.
The Court accepts it is clear from the Tribunal’s reasons that it considered the policy in some detail but ultimately found that it was irrelevant to the decision it had to make. In that sense, it cannot be said that the Tribunal misconstrued or misunderstood the policy. It did not apply it. For the reasons set out above, it was not required to.
Did the Tribunal misunderstand policy?
The Court’s acceptance of the Minister’s threshold argument that the Tribunal was not bound to apply the policy guidance, and indeed did not apply the policy guidance, is ultimately sufficient to dispose of all of the applicant’s grounds. In any event, the Court is also not persuaded that the Tribunal misunderstood the policy in the sense contended by the applicant.
Central to all of the applicant’s grounds is a contention that the Tribunal erred in its consideration of whether the policy applied to the visa held by the applicant. In particular, the applicant contends that the Tribunal erred in finding that the policy sought to be relied upon by the applicant related solely to WHVs, and accordingly found that any changes to the policy relating to another visa was irrelevant.
The Tribunal’s findings were in response to the contention by the applicant’s representative that changes to the policy considerations of condition 8547 were such that visa holders who were subject to that condition are permitted to work for a single employer for up to 12 months, provided the work is undertaken in different locations, and work in any one location does not exceed six months. The Tribunal recorded that it had reviewed the history of the condition and had not found any such changes. This was raised with the applicant’s representative at the hearing who was allowed to file further material. The applicant’s representative filed an extract from PAM3 entitled ‘Schedule 8 Condition 8547 6-month work limitation’. The Tribunal observed in relation to this (at [39]):
I note that this policy guidance on condition 8547 specifically references Working Holiday Makers. It does so at the beginning in mentioning the related framework documents as being subclass 417 and 462 visas, which are working holiday visas, and it mentions it at the beginning of the section the applicant’s representative quotes by stating: ‘Policy intends that WHMs should …’. This nuanced policy application of condition 8547 is specific for working holiday visas. There is no reason to assume that this interpretation of policy should be applied to other visas.
In the Court’s view, the policy guidance relied upon is inescapably referable solely to WHVs. That is plain from the stated framework of the policy and the repeated references through the document only to WHVs. The section of the policy which relates to permission to work longer than six months is as follows (CB 159):
Circumstances in which WHMs are taken to have permission to work longer than six months with one employer
Government initiatives aimed at addressing labour shortages allow WHMs to work longer than six months with one employer in certain regions and industries. As a matter of government policy, WHMs who work in the following circumstances are taken to have permission to work longer than six months with one employer and do not need to request it.
•Work in certain high-demand industries in Northern Australia only
This measure was introduced under the Australian Government’s 2015 ‘White Paper on Developing Northern Australia’.
•Work in different locations, where work in any one location does not exceed six months
This measure was announced by the Treasurer in September 2016, with the introduction of more flexible arrangements to support WHMs and industry.
•Plant and animal cultivation work anywhere in Australia
This was part of a package of measures announced in November 2018 to support regional and rural economies.
For more detailed information on “different locations”, “northern Australia” and eligible industries and occupations, refer to the Department’s website.
Once again, the Tribunal was clearly correct to find that the policy in this respect was referable solely to WHVs.
The applicant sought to rely on the only passage within the policy which does reference bridging visas. That passage in full states:
3.4 Condition 8547 and bridging visas
Six-month employment limitation starts again
A former WHM who becomes the holder of a WA-010 Bridging A visa (BVA) or WB-020 Bridging B visa (BVB) that is subject to condition 8547 must comply with the employment limitation as described above.
However, as the condition is attached to individual visas, the six-month employment limitation commences again when the bridging visa comes into effect. This means that a person who worked for an employer for up to six months while holding a WHM visa may work for that same employer for up to another six months on their bridging visa.
Bridging visa holders – requests for permission to work beyond 6 months
Requests to work longer than six months on a bridging visa that is subject to condition 8547 should in the first instance be directed to the office processing the visa holder’s substantive visa application.
That office should ask the visa holder to make a further bridging visa application (using Form 1005), so that a new bridging visa that is not subject to condition 8547 can be granted in accordance with 010.211(4).
The Court accepts the Minister’s submission that there is nothing said in passage 3.4 which might assist the applicant. It simply provides that condition 8547 may be applied to a bridging visa which might follow a WHV, and that upon doing so, the six-month period would restart for that visa. It also stipulates that a request must be made for permission to work beyond six months. It certainly does not impart any of the additional matters the policy gives guidance on.
Policy cannot displace clear legislative intent
As observed in the authorities canvassed above, PAM3 is no more than guidance to those seeking to apply the Act and Regulations. As submitted by the Minister, PAM3 has no statutory force. It does not even have the force of Ministerial Directions made pursuant to s 499 of the Act. A policy must therefore be consistent with the relevant legislative provision it seeks to provide guidance on (Minister for Home Affairs v G (2019) 266 FCR 569 at [58]). In this sense, a lawful policy “guides but does not control the making of decisions” (Drake (No 2) at [64] per Justice Brennan).
Here, it is worth recalling the legislative architecture in respect of the imposition of visa conditions. Section 41(1) of the Act states that the Regulations may provide that visas are subject to specified conditions. The Court notes s 41(2A) gives the Minister a discretionary power to waive such a condition in prescribed circumstances (the prescribed conditions are governed by reg 2.05(4) and are not applicable in the present case). Reg 2.05(1) states that a visa is subject to any conditions specified for the subclass of visa in Schedule 2. In the applicant’s case, Schedule 2 provides for condition 8547 to be imposed on the applicant’s Bridging B visa (subclause 020.611(5) of the Regulations).
Condition 8547 states that “[t]he holder must not be employed by any 1 employer for more than 6 months, without the prior permission in writing of the Secretary”. As the Minister correctly submitted, whether a person has breached a visa condition is a binary question and does not involve any discretion. The Minister is equally correct in submitting that where there may be an inconsistency between the policy and the statutory regime, it is the statute which must prevail.
Consequently, even if the applicant’s view of the applicability of the policy outside WHVs were correct, it could not displace the clear legislative imperative.
Materiality
As observed above, the Court had previously raised the issue of materiality with the parties. This is because the applicant sought to rely upon a purported exemption for work in different locations, but that policy specified that is where work in any one location does not exceed six months. There was evidence before the Tribunal that the applicant had worked for Buna Painting for seven months and for Caruso Homes for eight months. On the face of it, even if the applicant’s interpretation of the applicability of the policy was correct, it could not have saved the applicant.
In response, the applicant submitted that, firstly, the condition provides an interpretation of ‘employer’, defined as the ‘end user’ of the applicant’s service, as well as that “a visa holder may be employed by the same labour hire company or contractor for more than six months, but may not provide services to the same end user for more than six months”. The applicant contended that the evidence before the Tribunal was that, in the course of the applicant’s engagement with his two employers, he did not provide services to the same ‘end user’ for a period of more than a number of weeks, so his work would not have constituted work with the same ‘employer’ so as to “fall foul” of condition 8547. The Court does not accept this. The applicant seeks to conflate the clients he worked for whilst employed by Buna Painting and Caruso Homes with the ‘end user’. That is not what the policy says. The policy expressly states that “[f]or the purposes of condition 8547, the term “employer” means the business or organisation for which the visa holder is directly working – that is, the end user”.
Secondly, even if the two employers were to be characterised as the ‘end user’, the applicant contended that the condition nevertheless provides that ‘[a] visa holder may also be employed by the same end user for a combined total of more than six months, provided the work is undertaken in different locations and work in any one location does not exceed six months’. The applicant put forward that the evidence before the Tribunal was that, during his seven-month period at his first employer, he did not spend longer than one to two weeks at any one location, and during his eight-month period at his second employer, he would normally work for ‘up to a month’ at one location. Again, the Court does not consider the policy should be stretched in such a fashion. The clear purpose was to allow flexibility for industries such as health and education where the employer may be the relevant state government department, but employment might occur across different schools or hospitals. It does not encompass the situation described by the applicant.
In any event, the Court accepts the Minister’s submission that even if the Tribunal had applied the policy guidance in interpreting condition 8547, it was bound to still find that the applicant breached condition 8547 as there was no dispute that he was employed by two employers for periods of seven and eight months, respectively. The Court is satisfied that the outcome would inevitably have been the same (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [16]).
CONCLUSION
As observed, the Court accepts the Minister’s primary submission that the policy was not binding and that it was within the Tribunal’s decisional freedom to not apply policy. On that basis, none of the applicant’s grounds can succeed. However, in any event, the Court is also not persuaded that the Tribunal misunderstood the policy in the manner suggested by the applicant. Furthermore, even on the applicant’s own construction of the policy, the Court finds it would not have assisted the applicant. Ultimately, though, whatever is stated in the policy could not displace the clear legislative intent expressed in the condition.
The further amended application for review and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 30 July 2025
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