Boghdady v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 103
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Boghdady v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 103
File number: PEG 9 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 6 February 2025 Catchwords: MIGRATION – Temporary Business Entry visas – decision of the then Administrative Appeals Tribunal – whether the Tribunal fell into jurisdictional error by making a finding contrary to a “concession” made by the Department – whether the applicants were denied an opportunity to address the Tribunal in that regard and thereby denied procedural fairness – jurisdictional error established – writs issued. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 in Schedule 16 & Item 25
Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), cl 457.223 in Schedule 2
Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71
Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6
Division: Division 2 General Federal Law Number of paragraphs: 98 Date of hearing: 19 September 2024 Place: Perth Counsel for the Applicants: Mr S Kikkert Solicitor for the Applicants: Emigration Services Counsel for the First Respondent: Ms E Tattersall Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 9 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMGAD BOGHDADY
First Applicant
ANTONIOS BOGHDADY
Second Applicant
THOMAS BOGHDADY (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
2.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 12 December 2023 in Case Number 2311240.
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the applicants’ application for review according to law.
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 KENDALL:
BACKGROUND
Recent amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 12 December 2023 and thus predates recent amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
The Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceedings pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court will make an order substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
The applicants’ migration history
The first and fifth applicants are husband and wife respectively (Court Book (“CB”) 28-30). The second, third, fourth and sixth applicants are their children (CB 32-37). The first, second, third, fourth and sixth applicants all hold dual citizenship from Greece and Egypt (CB 28 & 31-39). The fifth applicant is a citizen of Egypt only (CB 29-30).
On 8 July 2015, the first applicant applied for a Temporary Business Entry (Class UC) (Subclass 457) visa (CB 637). That visa was granted on 10 May 2016 and was valid until 10 December 2017 (CB 637-638).
On 6 December 2017, the first applicant applied for a further Temporary Business Entry (Class UC) (Subclass 457) visa (being the visa the subject of the application before this Court) (the “visa”) (CB 27-52). The first applicant’s wife and children (the second, third, fourth, fifth and sixth applicants) were all included in that visa application as members of the first applicant’s family unit (CB 29-39). The first applicant also appointed a migration agent to assist him with that visa application (the “first representative”) (CB 40-41).
On 3 October 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (the “first delegate’s decision”). The delegate was not satisfied that cl 457.223(4)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) had been met (as was in force at the time of the first applicant’s visa application) because the first applicant was not the subject of an approved nomination (CB 64).
On 17 October 2018, the applicants filed an application for review of the first delegate’s decision by the Tribunal (CB 53-55). The applicants again appointed the first representative to assist them with their review application (CB 55).
On 21 July 2021, the Tribunal remitted the application to the Department of Home Affairs (the “Department”) for reconsideration with a direction that the first applicant met the requirements set out in cl 457.223(4)(a) in Schedule 2 of the Regulations (the “Tribunal’s first decision”) (CB 63-66). The Tribunal further explained that the first applicant was the subject of a nomination application lodged by Stavros Plastering Pty Ltd (the “sponsoring company”). The Tribunal noted that the nomination application was initially refused by a delegate of the Minister, however, on 21 July 2021, the Tribunal had approved that nomination (CB 64).
On 13 August 2021, the Department invited the first applicant to comment on adverse information (the “Department’s invitation to comment letter”) (CB 70-73). In particular, the Department had concerns that (based on historical financial statements from the sponsoring company) the business had “no capacity to pay for the $96,400 base salary as agreed in the employment contract” (CB 70).
Later that same day (also on 13 August 2021), a legal firm contacted the Department to advise that they had been appointed to represent the applicants (the “second representative”) and provided the Department with a completed “Form 956 – Appointment of a registered migration agent, legal practitioner or exempt person” form containing their contact details (CB 75-79).
On 23 August 2021, the applicants’ second representative provided a response to the Department’s invitation to comment letter (CB 80-83).
On 28 October 2021, the applicants’ second representative wrote to the Department enquiring as to the progress of the applicants’ visa application and providing copies of documents previously provided to the Tribunal (in relation to the Tribunal’s first decision) that related to the sponsoring company (CB 86-199).
On 14 January 2022, the second representative again wrote to the Department enquiring as to the progress of the applicants’ visa application (CB 200-201).
The applicants then provided further documents to the Department in support of their visa application (comprising educational records and documents related to the first applicant) (CB 202-209).
On 27 January 2023, the Department asked the applicants to provide more information in relation to their visa application (the “January 2023 request letter”) (CB 210-227). The applicants were given 28 days within which to provide the requested information (CB 211). Annexed to the January 2023 request letter was a “Request Checklist and Details” document which asked for a variety of information in relation to each of the applicants. Relevantly, the Department asked that the first applicant provide “[e]vidence of [his] English language ability” (CB 216). The “Request Checklist and Details” document provided with the January 2023 letter relevantly stated (CB 224):
Evidence of English language ability
Historical evidence from you indicate that you are not receiving the base salary level of at least $96,400 in order to be exempted from providing evidence of English Language ability. Hence, you must provide evidence of your English language ability. This evidence must be in the form of an English language test result with scores at or above a specified level.
You must provide evidence of your English language ability. This evidence must be in the form of an English language test result with scores at or above a specified level.
The “Request Checklist and Details” document then set out the types of tests and associated scores the first applicant would require and details of relevant “exemptions” applicable. In particular, the document stated (CB 225):
Test exemption
You are exempt from needing to prove your English language ability, if you can provide evidence of one of the following:
•you are a citizen of Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America and hold a valid passport issued by that country
•you hold the occupational registration, licence or membership that is required to perform your nominated occupation and to gain that registration, licence or membership, you had to show a level of English that is equal to, or better than, the level of English needed to achieve the scores in one of the English language tests described above
•you have completed at least five years of full-time study in a secondary and/or higher education institution where classes were in English
•you are an employee of an overseas business who is coming to Australia to work for that company or their associated entity and have a nominated annual earnings of at least AUD$96,400.
On 13 February 2023, the applicants’ second representative requested an extension of time of 12 weeks within which to respond to the request (noting that three of the applicants had applied for renewed passports and had been advised by the Greek and Egyptian Embassies that the estimated processing times were between 8 and 12 weeks) (CB 228-229).
On 30 March 2023, the Department asked the first applicant to provide further information relating to his “English language ability” (the “March 2023 request letter”) (CB 231-233). That letter relevantly stated (CB 232):
In your submission, you claim that you have completed at least five years of full-time study in a secondary and/or higher education institution where classes were in English.
However, there was insufficient information to demonstrate that you have completed at least five years of full-time study in a secondary and/or higher education institution where classes were in English.
If you are exempted from needing to prove your English language ability, please provide the evidence/document(s) that include the following information:
•name and location of the institution(s)
•level of qualification(s)
•official transcript from the secondary and/or tertiary education institution
•number of contact hours per week in English
•number of years of study.
Please be informed that the decision to provide you with further extension will be determined upon submission of your evidence that you have completed at least five years of full-time study in a secondary and/or higher education institution where classes were in English.
On 27 April 2023, the applicants’ second representative sent a letter to the Department responding to the March 2023 request letter (CB 234-236). The response referenced the January 2023 request letter and, relevantly, stated that the Department had “advised [that the first applicant was exempt from the [English] language requirement upon evidence he [was] earning a base salary of at least $96,400” (CB 235). With that response letter, the applicants’ second representative provided various supporting documents (CB 237-489), including a copy of the first applicant’s signed employment contract with the sponsoring company (CB 237-251) indicating an “annual pre-tax salary of $96,400 plus Superannuation” (CB 250).
On 28 April 2023, the Department again asked the first applicant to provide further information relating to his “English language ability” (the “April 2023 request letter”) (CB 491-494). That letter attached a “Request Checklist and Details” document (CB 495-500) which relevantly stated (CB 498):
Request detail
Evidence of English language ability
Thank you for providing further information and evidence.
In relation to the salary-related exemption, the relevant instrument (available at states under point 10 “[Note: Section 10 has the same effect as item 6 of the repealed instrument IMMI 15/028. There are no general salary based exemptions from English language requirements for Subclass 457 visa applications made on or after 1 July 2017.]” This case was lodged on 6 December 2017.
You must provide evidence of your English language ability. This evidence must be in the form of an English language test result with scores at or above a specified level.
The “Request Checklist and Details” document attached to the April 2023 request letter went on to set out the English language tests and scores required (CB 498). It also included information about test exemptions and, relevantly, provided as follows (CB 498-499):
Test exemption
You are exempt from needing to prove your English language ability, if you can provide evidence of one of the following:
•you are a citizen of Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America and hold a valid passport issued by that country
•you hold the occupational registration, licence or membership that is required to perform your nominated occupation and to gain that registration, licence or membership, you had to show a level of English that is equal to, or better than, the level of English needed to achieve the scores in one of the English language tests described above
•you have completed at least five years of full-time study in a secondary and/or higher education institution where classes were in English
•you are an employee of an overseas business who is coming to Australia to work for that company or their associated entity and have a nominated annual earnings of at least AUD$96,400.
On or shortly after 26 May 2023, the applicants provided further documents to the Department in support of their visa application (comprising identity documents, a letter from their second representative, confirmation of an International English Language Testing System (“IELTS”) test booking and statutory declarations) (CB 501-515).
On 7 July 2023, the applicants’ second representative wrote to the Department requesting an extension of time (to 4 August 2023) within which to provide evidence that the first applicant met the English language requirement (CB 516-519).
On 10 July 2023, the Department refused to grant the extension request (CB 520-521).
On 11 July 2023, a delegate of the Minister refused to grant the applicants the visas (the “second delegate’s decision”) (CB 532-541). The delegate was not satisfied that cl 457.223(4)(eb) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) had been met because the first applicant had not demonstrated that he satisfied the English language competency requirements or that any of the exemptions applied (CB 533).
On 28 July 2023, the applicants filed an application for review of the second delegate’s decision with the Tribunal (CB 542-551). The applicants again appointed their second representative to assist them with their review application (CB 549). They also provided the Tribunal with a copy of the second delegate’s decision (CB 552-561).
On 30 August 2023, the Tribunal invited the applicants (by email and through their second representative) to attend a hearing before it on 5 October 2023 (CB 573-586).
On 7 September 2023, the applicants’ second representative sent a letter to the Tribunal (by email) requesting an adjournment of the hearing on the basis that the first applicant had booked an IELTS test on 22 and 23 September 2023 (to satisfy the English language requirement for the grant of the visa) and did not expect to receive the test results until after the hearing date (CB 587-592).
Later that same day (also on 7 September 2023), the Tribunal responded to the applicants’ request for an adjournment (CB 593-597). The letter from the Tribunal relevantly stated (CB 595):
On 30 August 2023 we sent a letter inviting you to attend a hearing on 5 October 2023 to give evidence and present arguments relating to the issues arising in your case.
On 7 September 2023 we received a request that the hearing be postponed. The Member has considered the request carefully but has decided not to postpone the hearing.
The Member refers to your request to postpone the hearing listed for 5 October 2023 in order to undertake and receive results for a language test in order to meet the requirements of cl 457.223(4)(eb). In summary, the provisions require the applicant to undertake a language test within a period specified in a legislative instrument. The relevant legislative instrument is IMMI 17/057 (attached to this email).
The Tribunal observes IMMI 17/057 outlines the specific language tests and required scores. The period of time within which the relevant scores must be achieved is specified to be within three years from the date of visa application.
The Tribunal has formed the preliminary view that language scores achieved by the applicant more than three years after the date the visa application is made are not likely to be relevant to the issue to be decided.
The Tribunal also provided the applicants with a copy of Migration (IMMI 17/057: English Language Requirements for Subclass 457 visas) Instrument 2017 (“IMMI 17/057”) (CB 598-603).
On 18 September 2023, the applicants’ second representative sent the Tribunal a completed “Response to Hearing Invitation” form (via email) (CB 604-608).
On 2 October 2023, the first applicant notified the Tribunal that he had appointed a new representative to assist him with his application and the Tribunal hearing (scheduled to take place on 5 October 2023) (the “third representative”) (CB 609). The first applicant also provided a completed “Appointment of Representative” form (CB 610-611) and a completed “Response to Hearing Invitation” form (CB 612-614). That completed “Response to Hearing Invitation” form stated that, “prior to the hearing, the [third] representative [would] provide a submission addressing the [first] applicant’s circumstances relating to his case” (CB 613).
On 3 October 2023, the Tribunal wrote to the applicants’ third representative (by email) asking that the foreshadowed submissions be “provided as soon as possible” and noting that the completed “Response to Hearing Invitation” form provided by the applicants’ second representative indicated that submissions in relation to “why the Tribunal should take into account the new English language results were to be expected” (CB 615).
On 4 October 2023, the applicants’ third representative provided submissions to the Tribunal (via email) “addressing why the Tribunal should take into account the new English language results” (CB 621-624).
On 5 October 2023, the applicants attended the scheduled hearing to give evidence and present arguments in relation to their review application (CB 626-629). The applicants were assisted at that hearing by their third representative and an Arabic interpreter (CB 626).
At that hearing, the applicants were granted additional time (until 13 October 2023) to provide further information in relation to the first applicant’s satisfaction of the English language requirements (CB 628).
On 12 October 2023, the applicants’ third representative provided submissions and supporting documents to the Tribunal (by email) (those supporting documents comprising the first applicant’s previous visa grant notice dated 10 May 2016, the first applicant’s IELTS Test Report Form dated 23 September 2023 and the first applicant’s 2017 tax return) (CB 630-651).
On 12 December 2023 the Tribunal affirmed the second delegate’s decision refusing to grant the applicants the visas (the “Tribunal’s second decision”) (CB 655-662).
On 10 January 2024, the applicants applied to this Court for judicial review of the Tribunal’s second decision (CB 1-7). That application is brought pursuant to s 476 of the Act.
THE TRIBUNAL’S SECOND DECISION
To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s second decision in some detail.
The Tribunal’s decision in this matter is eight pages in length and spans 32 paragraphs (CB 655-662). The final two pages contain extracts of relevant legislative provisions (CB 661-662).
The Tribunal began by explaining that the applicants had applied for the visas on 6 December 2017 and that a delegate of the Minister had refused to grant the applicants the visas on 11 July 2023 because the first applicant had not achieved the specified English language test score within the specified time and, as such, did not meet cl 457.223(4)(eb) in Schedule 2 of the Regulations. The Tribunal confirmed that the applicants had sought review of the delegate’s decision (a copy of which was provided to the Tribunal). The Tribunal also confirmed that it had before it a copy of the Department’s file in this matter and that the applicants had appeared before the Tribunal to give evidence and present arguments (with the assistance of their third representative) (at [1]-[9]).
The Tribunal acknowledged that the first applicant had asked to postpone the hearing pending the results of an IELTS test “expected shortly after the hearing date”. The Tribunal explained that the adjournment request was declined as the applicant was required to sit the relevant language test and obtain the required scores within three years from the date of the visa application (citing legislative instrument IMMI 17/057) (at [10]).
The Tribunal identified that the issue in this case was whether the first applicant met the requirements set out in cl 457.223(4)(be) in Schedule 2 of the Regulations. The Tribunal detailed that the English language requirements for the visa differ depending on an applicant’s circumstances and that, in the present case, an applicant is required to achieve (in a single attempt) a test score specified in IMMI 17/057 or be an exempt person. The Tribunal also explained that an applicant is not required to demonstrate the specified English proficiency where their base rate of pay is at least the level of salary specified in IMMI 17/057 and it is “in the interests of Australia” that the applicant be granted the visa (at [11]-[13]).
The Tribunal outlined that the applicants’ representative had submitted that IMMI 17/057 was repealed and that the correct legislative instrument was IMMI 18/032. The Tribunal noted that it disagreed with that submission because IMMI 18/032 applied to Subclass 482 visas (at [14]-[15]).
The Tribunal acknowledged that new applications for a Subclass 457 visa could no longer be made and that IMMI 17/057 applied to applications made on or after 1 July 2017 and applications that had not been finally determined prior to 1 July 2017. The Tribunal noted that the applicants’ visa application was made on 6 December 2017 and had not yet been finally determined. The Tribunal outlined that IMMI 17/057 specified a salary of $96,400 per annum for visa applications made before 1 July 2017 and that, because the visa application in this case was made after 1 July 2017, the “highly paid employees” exception did not apply (at [16]-[18]).
The Tribunal also identified that an “exempt applicant” was defined in cl 457.223(11) in Schedule 2 of the Regulations and that there were specified classes of exempt applicants. The Tribunal concluded that there was no evidence that the first applicant was an exempt applicant and determined that the first applicant was therefore required to demonstrate the specified level of English language proficiency (at [19]-[21]).
The Tribunal then set out test scores required to satisfy the English language requirements (as detailed in IMMI 17/057) and recorded that the first applicant had sat two IELTS tests in June and September 2023 but neither test met the minimum band score or minimum scores for the English test components specified in IMMI 17/057. Accordingly, the Tribunal found that the first applicant did not satisfy the requirements of cl 457.223(4)(eb) in Schedule 2 of the Regulations. The Tribunal also found that the second, third, fourth, fifth and sixth applicants could not meet the secondary criteria for the grant of the visa (at [22]-[26]).
The Tribunal acknowledged that the applicants had requested a referral for “Ministerial Intervention”. The Tribunal set out the guidelines relevant to the types of matters which should be referred to the attention of the Minister and determined that there was no evidence before it that would reach the threshold of unique or exceptional circumstances to warrant the matter being referred for Ministerial consideration (at [27]-[31]).
The Tribunal ultimately affirmed the delegate’s decision refusing to grant the applicants the visas (at [32]).
APPLICATION TO THIS COURT
As outlined above, the applicants filed an application for judicial review of the Tribunal’s second decision in this Court on 10 January 2024.
On 29 May 2024, procedural orders were made by Registrar Downing of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions.
The applicants subsequently obtained legal representation and on 21 August 2024, an updated notice of address for service was filed on behalf of the applicants by Mr Gergis Ayoub of Emigration Services.
On 23 August 2024, an amended application for judicial review, written submissions and a list of authorities were filed on behalf of the applicants.
That amended application is lengthy and contains five particularised grounds of review, as follows:
1.The Tribunal fell into jurisdictional error by finding that, “as the visa application was made after 1 July 2017 the ‘highly paid employees’ exception does not apply” (para [18]), CB p. 657).
Particulars
1.1The Tribunal found that, “as the visa application was made after 1 July 2017, the ‘highly paid employees’ exception does not apply” (para [18]), CB p. 657).
1.2The Applicant applied for a Temporary Work (Skilled) (subclass 457) visa on 8 July 2015 with Stavros Plastering Pty Ltd as the sponsor (CB, p. 635-642).
1.3IMMI 17/057, at “10 Specification of salaries above which Subclass 457 applicants are exempt from the requirement to undertake English language tests” stipulates that this exemption is available for “applications for Subclass 457 visas made prior to 1 July 2017.”
1.4As such, the Tribunal erred in finding that the ‘highly paid employees’ exception does not apply”.
2.The Tribunal fell into jurisdictional error by making a finding contrary to the Department’s concession, without making it clear that this is what the Tribunal was intent on doing and without giving a specific opportunity to address on that topic. Alternatively, having made the concession, the Respondent is estopped from defending an application on the basis that the “highly paid employee exception” cannot apply in this case (issue estoppel).
Particulars
2.1In the Department’s request letter dated 27 January 2023, the Department conceded that the Applicant would be exempt from providing evidence of English Language ability if he provided evidence he is earning a base salary level of at least $96,400 (CB, p. 224, 235-236).
2.2The Applicant’s 2016-2017 Tax Return revealed that he earned a taxable income of $96,720 during that period.
2.3The nominated position was confirmed by a written employment contract dated 30 November 2017 for a base rate of $96,400.
2.4On 23 August 2021, Ms Sophie Manera from Tang Law Pty Ltd wrote to the delegate indicating that the base rate of salary was subsequently amended to $84,00 by a letter of variation dated 14 July 2021 (CB, p. 81 and 83).
2.5Despite this, the Applicant never eschewed reliance on an exemption related to his salary. In that same letter, Ms Manera indicated that “the Applicant will achieve the required score in an English language test, or provide evidence that he is an exempt applicant;” (CB, 82).
2.6There was evidence before the Tribunal that in 2021-2022, the Applicant had an annual salary of $96,720 (CB, p 251-271).
2.7The Applicant’s representative provided a signed employment contract between the Applicant and Stavros Plastering Pty Ltd dated 24 April 2023, which indicated that the Applicant was receiving an annual salary of $96,400 (plus superannuation) (para [5], CB, p, 235-236, p 237-251)).
2.8The Applicant relied on the Department’s concession that he would be exempt from providing evidence of English Language ability if he provided evidence he is earning a base salary level of at least $96,400, to his detriment. By relying on this exemption, the Applicant lost the opportunity to pursue other exemptions.
2.9The Tribunal found that “as the visa application was made after 1 July 2017 the ‘highly paid employees’ exception does not apply” (para [18]), p. 657).
2.10The Tribunal failed to provide the Applicant with procedural fairness by forewarning him that he might find contrary to a concession that the Department had made.
2.11Alternatively, having made this concession, the Respondent is estopped from defending an application on the basis that the “highly paid employee exception” cannot apply in this case (issue estoppel).
3.The Tribunal fell into jurisdictional error by failing to address a substantial, clearly articulated claim, which also amounted to a denial of procedural fairness. Alternatively, the Tribunal failed to give proper, genuine and/or realistic consideration to matters before it by not genuinely engaging with the applicants’ evidence. Alternatively, the Tribunal failed to take into account relevant considerations.
Particulars
3.1.There was evidence before the Tribunal that the Applicant has entered into a Contract of Employment with Stavros Plastering Pty Ltd (Court Book “CB”, p. 237).
3.2.Legislative Instrument IMMI 17/057 specifies Subclass 457 applicants who are exempt from the requirement to undertake English language tests.
3.3.One of the exemptions under Instrument IMMI 17/057 are for applicants who are: (1) employed by a company operating an established business overseas; and (2) nominated by a standard business sponsor who is the company or an associated entity of that company and (3) who will receive a base rate of pay, within the meaning of subregulation 2.57(1) of the Regulations, of at least AUD $96,400 (CB, p. 603).
3.4.There was evidence before the Tribunal that the Applicant was a “highly skilled plasterer” (CB, p 518).”
3.5.There was ample evidence before the Tribunal that the company’s and the applicant’s email address was [email address omitted] (CB, p 54, 69, 75, 80, 86, 140-142, 144, 200, 210, 230-231, 252-270, 431, 475, 516, 520, 545, 587, 604, 609, 616 and 625).
3.6.It is evident that the Applicant’s business email address is a Greek email address.
3.7.It is arguable on the evidence that was previously employed by a plastering company, and this transitioned into Stavros Plastering Pty Ltd and retained the same business email address.
3.8.The Applicant’s 2016-2017 Tax Return revealed that he earned a taxable income of $96,720 during that period.
3.9.The nominated position was confirmed by a written employment contract dated 30 November 2017 for a base rate of $96,400.
3.10.On 23 August 2021, Ms Sophie Manera from Tang Law Pty Ltd wrote to the delegate indicating that the base rate of salary was subsequently amended to $84,00 by a letter of variation dated 14 July 2021 (CB, p. 81 and 83).
3.11.In that same letter, Ms Manera indicated that “the Applicant will achieve the required score in an English language test, or provide evidence that he is an exempt applicant;” (CB, 82).
3.12.Through this, Ms Manera squarely raised with the decision maker that he had not conceded his exempt status, and that he would rely on an exemption should he not achieve the required score in an English language test.
3.13.There was evidence before the Tribunal that in 2021-2022, the Applicant had an annual salary of $96,720 (CB, p 251-271).
3.14.A contract dated 24 April 2023 stipulated that the applicant’s base salary was $96,400 (CB, p 237-251).
3.15.Despite this material being before the Tribunal, the Tribunal incorrectly found at paragraph [7] that the “issue in the present case is whether the primary visa applicant meets the requirements of cl 457.223(4)(eb)” (CB, p 656).
3.16.The Tribunal stated at paragraph [21] of the decision record “There is no evidence before the Tribunal that the applicant is an exempt applicant and the Tribunal is satisfied the applicant must demonstrate the specified level of English proficiency.” (CB, p. 658).
3.17.Although the Tribunal found that “as the visa application was made after 1 July 2017 the ‘highly paid employees’ exception does not apply” (para [18]), the Tribunal did not assess the Applicant against the exemption referred to at 1.3. (CB, p. 657).
3.18.At paragraph [20], the Tribunal considered whether the Applicant met the exemption of:
i. being a certain passport holders;
ii.completed a minimum of 5 years full-time secondary or higher study in English;
iii.having a demonstrated English language ability at the level required for cl 457.223(4)(eb) when obtaining a registration, licence or membership required by their nominated occupation; and
iv.being a certain applicant who lodged their visa applications before 1 July 2013
however, the Tribunal failed to consider the exemptions at 11(e).
4.The Tribunal fell into jurisdictional error by failing to provide the Applicant with procedural fairness in regard to what it considered to be the only issue in the case.
Particulars
4.1The Applicant also relies on the particulars at 3.1 to 3.16 in regard to this ground.
4.2It was not put to the applicants, and nor in the circumstances of the case was it obviously open on the known material, that the Tribunal might find that the only issue in the present case was whether the primary visa applicant meets the requirements of cl 457.223(4)(eb). (Para [7], CB, p 656).
4.3The Tribunal did not put the Applicant on notice that it did not intend to assess him against the exemption at 11(e) of IMMI 17/057.
5.The Tribunal fell into jurisdictional error by misconstruing and/or misapplying and/or misunderstanding Migration (IMMI 17/057: English Language Requirements for Subclass 457 visas) Instrument.
Particulars
5.1.The Applicant also relies on the particulars at 1.1 to 1.17 in regard to this ground.
5.2.At paragraph [20], the Tribunal considered whether the Applicant met the exemption of:
i. being a certain passport holders,
ii.completed a minimum of 5 years full-time secondary or higher study in English;
iii.having a demonstrated English language ability at the level required for cl 457.223(4)(eb) when obtaining a registration, licence or membership required by their nominated occupation;
iv.and being a certain applicant who lodged their visa applications before 1 July 2013
5.3. However, the Tribunal failed to consider the exemptions at 11(e).
5.4.In circumstances where the Tribunal referred to every possible exemption except the exemption at 11(e), the Tribunal either overlooked this exemption or misunderstood this exemption and/or conflated this exemption with the “’highly paid employees’ exception”, and incorrectly dismissed it as not being applicable if a visa application was made after 1 July 2017 (para [18], CB, p. 657).
On 30 August 2024, written submissions were filed on behalf of the Minister.
The matter proceeded to a final hearing on 19 September 2024. The applicants were represented at that hearing by Mr Sean Kikkert (“Mr Kikkert”) of counsel (who appeared via video link). The Minister was represented at the hearing by Ms Elle Tattersall (“Ms Tattersall”) from Minter Ellison Lawyers (who also appeared via video link). The Court thanks both Mr Kikkert and Ms Tattersall for their considerable assistance with what proved to be a very complex matter.
The materials before the Court include the first applicant’s affidavit (sworn on 1 January 2024, filed in this Court on 10 January 2024 and taken as read and in evidence at the hearing of this matter), a Court Book numbering 662 pages (marked as Exhibit 1 at the hearing of this matter), the amended application and written submissions filed on behalf of the applicants on 23 August 2024 and written submissions filed on behalf of the Minister on 30 August 2024.
CONSIDERATION
As outlined above, the amended application for judicial review filed on behalf of the applicants on 23 August 2024 contained five particularised grounds of review.
At the hearing of this matter, much of the oral submissions made by counsel for both parties focused on ground two. As a result of those submissions and the parties’ very clear focus, this Court will begin by addressing ground two.
Ground two
By ground two, the applicants claim that the Tribunal fell into jurisdictional error by making a finding contrary to a “concession” made by the Department, without making it clear to the applicants that this is what the Tribunal was doing and that, by doing so, the applicants were denied an opportunity to address the Tribunal in that regard.
Relevantly, the applicants claim that the Department “conceded” that the first applicant would be exempt from meeting the English language competency requirement if he provided evidence that he earned a base salary of at least $96,400.
The applicants also raised an alternate argument that, having made such a concession, the Minister “is estopped” from defending an application on the basis that the “highly paid employee exemption” cannot apply in this case. This alternate argument will be discussed separately below.
The parties’ submissions in relation to ground two
Applicants’ written submissions
The applicants’ written submissions (filed on behalf of the applicants on 23 August 2024) in relation to ground two relevantly provide as follows:
(a)the Tribunal fell into jurisdictional error by making a finding contrary to the Department’s concession, without making it clear that this is what the Tribunal was intent on doing and without giving the applicants a specific opportunity to address the Tribunal on that topic;
(b)in the Department’s January 2023 request letter, the Department conceded that the first applicant would be exempt from providing evidence of his English Language ability if he provided evidence that he is earning a base salary level of at least $96,400 (CB 224 & 235-236). This evidence was provided as outlined in the particulars of the amended application (filed on 23 August 2024). The first applicant never eschewed reliance on an exemption related to his salary as noted in the letter that the applicants’ second representative sent to the Department on 23 August 2021, in which she noted that “the [first] [a]pplicant [would] achieve the required score in an English language test, or provide evidence that he is an exempt applicant” (CB 82);
(c)the first applicant relied on the Department’s concession that he would be exempt from providing evidence of his English Language ability if he provided evidence that he was earning a base salary level of at least $96,400, to his detriment. By relying on this exemption, the first applicant lost the opportunity to pursue other exemptions, and the Tribunal failed to provide the applicant with procedural fairness by forewarning him that he might find contrary to the concession that the Department had made.
(d)In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71, McHugh J stated as follows:
39.On a number of occasions this Court has said that proceedings before the Tribunal are inquisitorial in nature. The arguments and evidence of applicants or the Minister cannot narrow the Tribunal’s jurisdiction to investigate the generality of a claim for a protection visa. Whatever the arguments or evidence of an applicant, the Tribunal is entitled, but not bound, to look at the issue generally. If the Tribunal elects to exercise its jurisdiction more widely than the applicant or the Minister has asked, however, it must do so in accordance with law...
(e)in Minister for Immigration and Border Protection v WZARH [2015] HCA 40, in the joint judgment of Gageler and Gordon JJ, their Honours noted (footnotes omitted):
60.Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.
(f)in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 (“Lam”), Gleeson CJ said:
37.…Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
(g)although these remarks were made in dissent, the Chief Justice’s statement has regularly been cited with approval. For example, in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29, the High Court referred to the comments of Gleeson CJ in Lam and stated:
82....compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a “practical injustice”.
Applicants’ oral submissions
In oral submissions before this Court, Mr Kikkert submitted as follows on behalf of the applicants:
(a)the Tribunal made a finding that the highly paid employee exemption did not apply. However, the applicants’ position is that the Department took a contrary position prior to the matter coming to the Tribunal;
(b)the applicants say that this is a “concession” on the part of the Department;
(c)the first applicant relied on that concession to his detriment (as well as to the detriment of the other applicants);
(d)the Minister claims that no such concession was made by the Department and references “some documents” in that regard;
(e)the applicants’ position is that the contents of the Department’s invitation to comment letter (in particular at CB 71), rather than being responsive to any information from the first applicant, clearly gives the impression that the issue before the decision-maker was the first applicant’s pay;
(f)this is despite the fact that it is alleged that the first applicant did not apply for the visa in time to meet the requirements of that exemption;
(g)looking at that document, the first applicant was asked to provide a number of documents, all of which seem to relate to how much the first applicant was being paid;
(h)the Minister’s submission is that the Department is simply “picking up” or “parroting” the information that the first applicant himself provided to the Department and, in that context, it cannot be seen as a concession (instead it is simply a repetition of the first applicant’s own assertions);
(i)on 23 August 2021, the applicants’ second representative wrote to the Department and, whilst the letter did reference amendments to the first applicant’s pay, the first applicant in no way eschewed reliance upon exemption grounds and was, in fact, still under the understanding that the highly paid exemption could apply to him. The applicants’ second representative stated (at CB 82) that:
the [first] [a]pplicant will achieve the required score in an English language test, or provide evidence that he is an exempt applicant;
(j)the Department was aware that the first applicant was relying upon the exemption grounds and, in particular, the highly paid exemption ground (as well as others);
(k)the Request Checklist and Details attached to the January 2023 request letter states as follows (CB 224):
Evidence of English language ability
Historical evidence from you indicate that you are not receiving the base salary level of at least $96,400 in order to be exempted from providing evidence of English Language ability. Hence, you must provide evidence of your English language ability. This evidence must be in the form of an English language test result with scores at or above a specified level.
(l)assessing the paragraph as a whole, the Department seems to be conceding that the exemption would apply and that the first applicant did not meet the exemption because, at that stage, his salary was less than the requisite amount;
(m)the first applicant relied upon that information and that is evident from the material that was provided on behalf of the applicants (in particular, at CB 235). That information was provided by the applicants’ second representative in the form of a letter (dated 27 April 2023) which relevantly states (CB 235-236):
Evidence of English Language Ability
4.In the Request and IMMI Letter, the Department requested Amgad Boghdady provide evidence of his English language ability. In the following extract of the Request letter dated 27 January 2023, the Department advised Amgad Boghdady is exempt from the language requirement upon evidence he is earning a base salary level of at least $96,400:
Evidence of English language ability
Historical evidence from you indicate that you are not receiving the base salary level of at least $96,400 in order to be exempted from providing evidence of English Language ability. Hence, you must provide evidence of your English language ability.
5.Please refer to Document (i) being the signed employment contract between Amgad Boghdady and Stavros Plastering Pty Ltd dated 24 April 2023 that indicates Amgad is receiving an annual salary of $96,400 (plus superannuation).
(n)that correspondence shows that the exemption was a “live issue” and continued to be referred to by the applicants’ second representative. It references evidence placed before the Tribunal to show that the first applicant met the highly paid exemption salary (including a contract of employment commencing at CB 237 which states the salary at CB 250 and payslips from CB 252-271);
(o)had the applicants been aware of the Department’s position (ie, that the exemption did not apply) they may have advanced other arguments or assessed other exemption options;
(p)there was, for example, material before the Tribunal that should have alerted the Tribunal to the fact that the high salary exemption in relation to an employee of an overseas company should have been considered;
(q)had the first applicant been aware that he was not eligible for the highly paid employee exemption, he might have focused more efforts on other exemption grounds; and
(r)for an error to be material, there simply needs to be the possibility of a different outcome and that is certainly possible in this case.
Minister’s written submissions
The Minister’s written submissions (filed on behalf of the Minister on 30 August 2024) relevantly provide as follows:
(a)on 27 January 2023, the first applicant was invited by the Department to provide more information in support of his visa application, including evidence of his English language ability (CB 210-227). Under the section titled “Evidence of English language ability”, it was recorded:
Historical evidence from you indicate that you are not receiving the base salary level of at least $96,400 in order to be exempted from providing evidence of English Language ability. Hence, you must provide evidence of your English language ability…
(b)contrary to the applicants’ submissions, the above extract did not constitute a conclusive concession or finding by the Department that the first applicant would not be required to provide evidence of his English language ability in the event that he was receiving a base salary of a least $96,400;
(c)first, that invitation must be viewed in the context of the first applicant’s claims to the Department which relevantly were that:
(i)“[the first applicant] claims that he paid himself a high salary since he cannot achieve the required score on an English language test, as required for grant of my previous Subclass 457 visa. Hence, [the first applicant] indicates that the nominated salary has been inflated to $96,400 so he can be exempted from English language requirements” (CB 71); and
(ii)“the [first] applicant is no longer exempt from the requirement to undertake an English language test” as his salary had been amended to $84,000 (CB 81);
(d)when viewed in that context, it is clear that the invitation to provide more information can be seen as merely picking up the information provided by the first applicant (being that he had previously considered himself to have been exempt from satisfying the English language requirements);
(e)second, that correspondence merely constituted a step in the Department’s consideration of the visa application. It is readily apparent that the Department was of the view that the highly paid employees exception did not apply to his application in circumstances where:
(i)in an additional request for more information dated 28 April 2023 the Department again requested evidence of the first applicant’s English language ability (CB 490-500) stating that:
In relation to the salary-related exemption, the relevant instrument (available at states under point 10 “[Note: Section 10 has the same effect as item 6 of the repealed instrument IMMI 15/028. There are no general salary based exemptions from English language requirements for Subclass 457 visa applications made on or after 1 July 2017.]” This case was lodged on 6 December 2017.
You must provide evidence of your English language ability. This evidence must be in the form of an English language test result with scores at or above a specified level.
(ii)the first applicant subsequently provided an IELTS test report form dated 22 June 2023 (CB 519); and
(iii)in refusing the application on 11 July 2023 the delegate relevantly found that “the available information does not indicate that any of the exemptions from the requirement to demonstrate English language proficiency by way of an English test specified in the relevant legislative instrument apply in the circumstances of the application” and that the first applicant did not meet the requirements of cl 457.223(4)(eb) in Schedule 2 of the Regulations (CB 533-534);
(f)any suggestion that the first applicant was not on notice that cl 457.223(6) in Schedule 2 of the Regulations may be found not to apply to his circumstances cannot be accepted. This is so because of:
(i)the requests for information, and decision of, the delegate referred to above;
(ii)the fact that the first applicant placed no further reliance on cl 457.223(6) in Schedule 2 of the Regulations from 23 August 2021, the additional reference to “exempt applicant” in that correspondence must properly be understood as a reference to cl 457.223(4)(eb)(i) in Schedule 2 of the Regulations (CB 82);
(iii)the fact that the written arguments to the Tribunal focussed on the first applicant undertaking and receiving the requisite score in a language test specified by the Minister (CB 589, 607 & 623-624); and
(iv)the Tribunal’s preliminary view that a test undertaken in 2023 could not meet the requirements in IMMI 17/057 and the provision of IMMI 17/057 (CB 593-603).
Minister’s oral submissions
In oral submissions before this Court, Ms Tattersall submitted as follows on behalf of the Minister:
(a)the language in the January 2023 request letter picks up the previous arguments raised by the first applicant;
(b)the first applicant was, at all relevant times, represented and the applicants were not navigating these issues alone;
(c)the January 2023 request letter did not constitute any relevant concession and, as outlined in written submissions (filed on behalf of the Minister on 30 August 2024), needs to be considered within the context of it picking up information and arguments made by the first applicant;
(d)the Department currently summarises and sets out the relevant test exemptions that could apply under the relevant instrument in its correspondence (CB 225);
(e)also of importance is the April 2023 request letter (CB 490) which was sent to the applicants the day after they sought to rely on the highly paid employee exemption;
(f)that correspondence relevantly states:
Evidence of English language ability
Thank you for providing further information and evidence.
In relation to the salary-related exemption, the relevant instrument (available at states under point 10 “[Note: Section 10 has the same effect as item 6 of the repealed instrument IMMI 15/028. There are no general salary based exemptions from English language requirements for Subclass 457 visa applications made on or after 1 July 2017.]” This case was lodged on 6 December 2017.
(g)essentially, immediately after there was some contention that the first applicant may have misunderstood the Department’s original correspondence, it was clarified by further correspondence. The Department goes on to again provide a summary of the relevant test exemptions (CB 498-499);
(h)the first applicant was therefore aware, at all relevant times, that compliance with cl 457.223(4)(eb) in Schedule 2 of the Regulations was in issue;
(i)whilst the first applicant might have initially relied on the January 2023 request letter, the first applicant then appears to have accepted that the highly paid employee exemption did not apply;
(j)it is clear from the correspondence provided on behalf of the applicants on 26 May 2023 (CB 504) where it is essentially stated that the first applicant had booked some tests and was going to try to achieve the requisite IELTS score;
(k)there was no argument advanced by the applicants after 28 April 2023 that the highly paid employee exemption would apply in the first applicant’s circumstances; and
(l)on that basis, the delegate’s decision was essentially considering the same issue as the Tribunal (and ultimately reached the same conclusion as the Tribunal).
The Court’s consideration in relation to ground two
The applicants claim, by ground two, that the Department conceded that the first applicant would be exempt from providing evidence of his English language ability if he provided evidence he was earning a base salary of at least $96,400. The applicants further claim that the first applicant relied on that concession to his detriment because, having relied on that concession, he lost the opportunity to pursue other exemptions which may have been available to him. The applicants finally claim that the Tribunal failed to afford the first applicant procedural fairness by forewarning him that the Tribunal might find contrary to that concession (purportedly made by the Department).
The Court notes that the English language requirements for the Subclass 457 visa were (at the time of the Tribunal’s decision) set out in IMMI 17/057. That instrument required that the applicants obtain the requisite test scores set out in cl 8 of IMMI 17/057 within three years from the date of the visa application: cl 9 in IMMI 17/057. Alternatively, for applications made prior to 1 July 2017, applicants were exempt from undertaking English language tests if their base rate of pay was at least $96,400: cl 10 in IMMI 17/057.
There are alternate exemptions (including, inter alia, exemptions for applicants holding specified passports, those having completed a minimum amount of study in Australia and overseas employees with a base rate of pay of at least $96,400: cl 11 in IMMI 17/057).
The Court has does not consider it necessary, in this case, to determine whether the Department made any “concession” in relation to the first applicant’s ability to access any exemption from providing evidence of his English language ability. Rather, the Court considers that the provision of “unclear” information to the applicants regarding the English language requirements and relevant exemptions is, in and of itself, “problematic” and points to a denial of procedural fairness of a sort that this Court to charged with addressing.
As outlined above, the January 2023 request letter sent by the Department to the applicants (CB 210-227) annexed a “Request Checklist and Details” document which asked for a variety of information in relation to each of the applicants. Most relevantly, the Department asked that the first applicant provide “[e]vidence of [his] English language ability” (CB 216). That correspondence stated (CB 224):
Evidence of English language ability
Historical evidence from you indicate that you are not receiving the base salary level of at least $96,400 in order to be exempted from providing evidence of English Language ability. Hence, you must provide evidence of your English language ability. This evidence must be in the form of an English language test result with scores at or above a specified level.
You must provide evidence of your English language ability. This evidence must be in the form of an English language test result with scores at or above a specified level.
The Court agrees that it can be inferred from the passage above that, if the first applicant was receiving the base salary of at least $96,400, he would be exempt from providing evidence of his English language ability. There is no reference to any applicable time period within which the visa application was required to be made in order for the first applicant to be eligible for the exemption or any suggestion from the Department that the first applicant would not be eligible for that exemption on the basis of the date of his visa application (being made after 1 July 2017, as outlined in cl 10 in IMMI 07/057).
The “Request Checklist and Details” document sets out the types of tests and test scores that the first applicant would require and the details of any applicable “exemptions”. In particular, that document states (CB 225):
Test exemption
You are exempt from needing to prove your English language ability, if you can provide evidence of one of the following:
•you are a citizen of Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America and hold a valid passport issued by that country
•you hold the occupational registration, licence or membership that is required to perform your nominated occupation and to gain that registration, licence or membership, you had to show a level of English that is equal to, or better than, the level of English needed to achieve the scores in one of the English language tests described above
•you have completed at least five years of full-time study in a secondary and/or higher education institution where classes were in English
•you are an employee of an overseas business who is coming to Australia to work for that company or their associated entity and have a nominated annual earnings of at least AUD$96,400.
That list includes an exemption for “an employee of an overseas business … and have … nominated annual earnings of at least AUD$96,400”. Whilst this is a separate exemption to the highly paid employee exemption, the fact that they require the same minimum nominated annual earnings is also arguably confusing.
In the March 2023 request letter, the Department again asked the first applicant to provide further information relating his English language ability (CB 231-233). That letter relevantly stated (CB 232):
In your submission, you claim that you have completed at least five years of full-time study in a secondary and/or higher education institution where classes were in English.
However, there was insufficient information to demonstrate that you have completed at least five years of full-time study in a secondary and/or higher education institution where classes were in English.
If you are exempted from needing to prove your English language ability, please provide the evidence/document(s) that include the following information:
•name and location of the institution(s)
•level of qualification(s)
•official transcript from the secondary and/or tertiary education institution
•number of contact hours per week in English
•number of years of study.
Please be informed that the decision to provide you with further extension will be determined upon submission of your evidence that you have completed at least five years of full-time study in a secondary and/or higher education institution where classes were in English.
By way of the April 2023 request letter, the Department again asked the first applicant to provide further information relating his English language ability (CB 491-494). That letter attached a “Request Checklist and Details” document (CB 495-500) which. relevantly, stated (CB 498):
Request detail
Evidence of English language ability
Thank you for providing further information and evidence.
In relation to the salary-related exemption, the relevant instrument (available at states under point 10 “[Note: Section 10 has the same effect as item 6 of the repealed instrument IMMI 15/028. There are no general salary based exemptions from English language requirements for Subclass 457 visa applications made on or after 1 July 2017.]” This case was lodged on 6 December 2017.
You must provide evidence of your English language ability. This evidence must be in the form of an English language test result with scores at or above a specified level.
The attached “Request Checklist and Details” document again set out the English language tests and scores required (CB 498). It also included information about applicable test exemptions and, relevantly, provided as follows (CB 498-499):
Test exemption
You are exempt from needing to prove your English language ability, if you can provide evidence of one of the following:
•you are a citizen of Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America and hold a valid passport issued by that country
•you hold the occupational registration, licence or membership that is required to perform your nominated occupation and to gain that registration, licence or membership, you had to show a level of English that is equal to, or better than, the level of English needed to achieve the scores in one of the English language tests described above
•you have completed at least five years of full-time study in a secondary and/or higher education institution where classes were in English
•you are an employee of an overseas business who is coming to Australia to work for that company or their associated entity and have a nominated annual earnings of at least AUD$96,400.
Again, this correspondence is arguably confusing. It lacks clarity. The Department states that there are “no general salary based exemptions from English language requirements for Subclass 457 visa applications made on or after 1 July 2017”. However, as outlined in the “Request Checklist and Details” document set out above, there was an oversees employee exemption for employees earning at least “AUD96,400” (being the same minimum salary that the first applicant was originally being paid).
The Court notes the comments made by the High Court in Lam as follows (emphasis added and footnotes omitted):
37.A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
Whilst the circumstances of this case differ to those outlined in Lam, the principles advanced are applicable here.
The applicants relied upon the statements made by the Department in relation to the first applicant’s ability to access the highly paid employee exemption (including unclear information about the circumstances in which such an exemption would in fact be accessible by the first applicant) to their detriment and, acting on faith, refrained from putting material before the decision-maker (including any additional evidence in relation to other exemptions applicable or attempting an IELTS test sooner and submitting evidence of the same to the Department). This is procedural unfairness personified.
As explained by the High Court in Lam (at [37]), procedural fairness is concerned with avoiding practical injustice.
Here, the applicants were denied procedural fairness. They refrained from putting material before the Department because they relied on the statements made by the Department in relation to the first applicant’s eligibility to access the highly paid employee exemption.
The Court also notes that the applicants did ultimately provide an IELTS test result to the Department (on 7 July 2023, see CB 554) and the Minister’s delegate ultimately found that the IELTS test result did not meet required the overall band score of 5.0.
Whilst not specifically raised by the parties, the Court notes that the Minister’s delegate did not make any findings about the IELTS test score being provided outside of the three-year period from the date of the visa application (as specified in cl 9 of IMMI 17/057).
The Tribunal found that the IELTS test scores provided by the first applicant (which were dated 10 June 2023 and 23 September 2023) did not meet the minimum band score or minimum scores required (as set out in cl 8 of IMMI 17/057) (at [23]). However, the Tribunal also declined to adjourn the Tribunal hearing to allow the first applicant time to receive further test results on the basis that the first applicant was required to sit the relevant language test and obtain the required scores within three years from the date of the visa application.
It then appears from the information before the Court that the Tribunal allowed the applicants additional time following the Tribunal hearing on 5 October 2023 (until 13 October 2023) to provide additional information relating to his English language proficiency (including IELTS test report scores) (CB 628). The applicants did provide further materials following the hearing in the form of the first applicant’s previous visa grant notice dated 10 May 2016, the first applicant’s IELTS Test Report Form dated 23 September 2023 and the first applicant’s 2017 tax return (CB 632-651).
There is no information in the Tribunal decision to suggest that the Tribunal explained to the first applicant that he was not eligible for the highly paid employee exemption or that any discussion was had about the type of evidence that the Tribunal might require to make a positive finding in this case.
The Court considers that, had the Department not provided information to the applicants which suggested that the first applicant could have been exempt from providing evidence in relation to the English language proficiency requirements (or, indeed, put the applicants on notice that they had exceeded the three year time period from the visa application date within which to sit an English language test), the applicants might have otherwise provided alternate material to satisfy the English language requirements (including pursuing other exemption avenues that may have been available to them).
The Tribunal should have taken (and, indeed, is required to take) this denial into account. It did not – thereby exacerbating a clear procedural breach.
Overall, on the basis of the above, the Court determines that the applicants have not been afforded procedural fairness in this matter.
The application will be remitted to the ART for consideration according to law.
Remainder of ground two and consideration of grounds one, three, four and five
Having found jurisdictional error, the Court does not consider it is necessary to consider whether the remaining grounds of review point to any issue of jurisdictional error on the part of the Tribunal and the Court has not done so.
CONCLUSION
For the reasons outlined above, the applicants’ amended application for judicial review (filed in this Court on 23 August 2024) has identified jurisdictional error.
The Tribunal’s decision will be set aside and the matter will be remitted to the ART for reconsideration.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 6 February 2025
SCHEDULE OF PARTIES
PEG 9 of 2024 Applicants
Fourth Applicant:
BIMOUA BOGHDADY
Fifth Applicant:
EZIS ZAKRIA FARNSIS SEDHOM
Sixth Applicant:
BISOI BOGHDADY
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4
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