Condorsi Quality Services Pty Ltd v Minister for Immigration and Citizenship
[2025] FedCFamC2G 740
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Condorsi Quality Services Pty Ltd v Minister for Immigration and Citizenship [2025] FedCFamC2G 740
File number(s): SYG 306 of 2021 Judgment of: JUDGE D HUMPHREYS Date of judgment: 23 May 2025 Catchwords: MIGRATION – Subclass 457 visa – Whether as a result of failing to adjourn the review proceeding in the absence of a response to a s 359 letter the Administrative Appeals Tribunal fell into jurisdictional error – Whether the Tribunal unreasonably failed to enquire as to why there had been no response to a s 359 letter – Application dismissed Legislation: Migration Act 1958 (Cth) ss 140GB, 359, 360(3), 363(1)(b), 359, 379C(5), 379G(2)
Migration Regulations 1994 (Cth) regs 2.71, 2.72, 2.773
Cases cited: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SLGB (2004) 207 ALR 12
Minister for Immigration v Li (Li) (2013) 297 ALR 225
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 14 May 2025 Place: Parramatta Counsel for the Applicant: Mr Jones Solicitor for the Applicant: Mr Northam (Northam Lawyers) Solicitor for the First Respondent: Ms Pieri of Minter Ellison Lawyer Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 306 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CONDORSI QUALITY SERVICES PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,900.00.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (“the Tribunal”) dated 25 January 2021, affirming a decision of a delegate of the Minister (“the delegate) refusing to grant the applicant’s nomination of a position of employment for a prospective visa holder of the Subclass 457 visa.
For the reasons set out below, the application is dismissed.
BACKGROUND
The applicant is a company. On 14 March 2017, the applicant applied for approval of a nomination for the position of Wall Floor Tiler for the nominee, Macario Maruqe Velazquez.
On 24 May 2018, a delegate refused to approve the nomination on the basis that the applicant did not satisfy reg 2.72 of the Migration Regulations 1994 (Cth) (“the Regulations”) and s 140GB of the Migration Act 1958 (Cth) (“the Act”). The delegate was not satisfied that there was sufficient evidence to support the claim that the nominated occupation was genuine.
The applicant sought review of the delegate’s decision.
On 2 December 2020, the Tribunal invited the applicant, via his representative, to provide information about the business and the nominated position pursuant to s 359 of the Act. The Tribunal did not receive a response to this invitation.
On 25 January 2021, the Tribunal affirmed the delegate’s decision.
On 28 January 2021, the applicant’s representative emailed the Tribunal that they did not receive the 2 December invitation letter and asked for a seven-day extension to provide the documentation requested.
On 1 February 2021, the Tribunal informed the applicant’s representative that it had properly completed its statutory function in making its decision and had no power to take any further action on the review.
On 1 March 2021, the applicant applied to the Court for judicial review.
THE TRIBUNAL’S DECISION
The Tribunal decision is relatively short and the reasons for decision span a total of 7 pages comprising of 31 paragraphs.
The Tribunal highlighted the provisions under the Act and Regulations, prior to 18 March 2018 that provided the three stages in sponsoring an employee from overseas in the Subclass 457 visa programme. The nomination of an occupation under this visa is made under s 140GB of the Act and 2.73 of the Regulations. Regulations 2.72(3) to (2) prescribe the criteria that must be satisfied for the Minister to approve a nomination.
The delegate’s decision was made under reg 2.72(10)(f) which relevantly states:
2.72 Criteria for approval of nomination - Subclass 457...
….
(10) If the person is a standard business sponsor-the Minister is satisfied that:
…
(f) the position associated with the nominated occupation is genuine; and
The Tribunal noted that on 2 December 2020, the Tribunal wrote to the applicant requesting certain information pursuant to s 359(2) of the Act. As the applicant failed to provide the information it was required to within the prescribed time, or seek an extension of time, s 359C(1) of the Act operated such that the Tribunal had the power to make a decision on the review, without taking any further action to obtain comments or information from the applicant. Further, this section precluded the Tribunal from offering the applicant a hearing date.
At [11]-[15] the Tribunal considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time to provide evidence to support its application for review. The Tribunal noted different authorities where similar issues were discussed, the applicant’s knowledge of the reasons for the nomination application refusal, and the implications of not providing information requested in the 2 December 2020 request. Ultimately, the Tribunal decided not to exercise its discretion under s 363(1)(b) to adjourn the review.
The issue before the Tribunal was whether the applicant met the criteria for approval of the nomination.
Reg 2.71(10)(f) of the Regulations requires that the position associated with the nominated occupation be genuine. The Tribunal noted that in Cargo First Pty Ltd v MIBP [2016] FCA 30, the Court upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated to determine whether it was genuine. It provided the Macquarie Dictionary Online definition and the departmental policy in the Procedures Advice Manual 3 (PAM3) providing guidance on what is required by the regulation.
The Tribunal found it relevant to have regard to the Australia and New Zealand Standard Classification of Occupations (“ANZSCO”) Code 333411 in assessing the genuineness of the nominated occupation. It noted that the Courts endorsed ANZSCO as consistent and authoritative set of definitional rules and descriptions for the classification of Occupations: Parekh v Minister for Immigration and Citizenship [2007] FMCA 633 (Parekh) and Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 843 (Wang). However, the Tribunal accepted that, in assessing whether the requirements under reg 2.72(10)(f) are met, a narrow matching process between the position description of the nominated position and the relevant ANZSCO occupation definition should be avoided.
The ANZSCO Code relevantly stated about the nominated occupation:
UNIT GROUP 3334 WALL AND FLOOR TILERS
WALL AND FLOOR TILERS lay ceramic, clay, slate, marble and glass tiles on external and internal walls and floors to provide protective and decorative finishes.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate Ill including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
•examining plans, measuring and marking surfaces and laying out work
•preparing wall and floor surfaces by removing old tiles, grout and adhesive, filling holes and cracks, and cleaning surfaces
•spreading adhesive onto prepared surfaces and tiles, and setting tiles in position
•using tile-cutting tools to cut and shape tiles needed for edges and comers, and around objects such as fittings and pipes
•ensuring tiles are correctly aligned and spaced
•grouting tiles, and cleaning and removing excess grout
•applying waterproofing systems
•may lay floors of granolithic, terrazzo, cement or similar composition
•may lay coloured tiles in patterns to create mosaics
Occupation:
333411 Wall and Floor Tiler
333411 WALL AND FLOOR TILER
Lays ceramic, clay, slate, marble and glass tiles on external and internal walls and floors to provide protective and decorative finishes. Registration or licensing may be required.
Skill Level: 3
Specialisations:
Ceramic Tiler Mosaic Tiler
The applicant provided submissions to the Department in relation to evidence of the position being a genuine position at [26]:
The business was created when the need was foreseen in the marketplace for the tiling services that the company provides. Master Builders Australia confirms that the construction industry needs an additional 300,000 employees, apprentices and contractors.
This shortage, provides Condorsi the ability to offer its services as a tiling contractor to a number of building companies in Queensland. We provide with this submission copies of additional builders that provide regular work to Condorsi.
The Department of Employment has also confirmed in their September 2016 report that the occupation of Wall and Floor Tiler is in shortage in Australia. This is further show in the results of the labour market testing that the company undertook. The labour mark testing reflects the findings of Master Builders Australia and of the Department of Employment. There is clearly a shortage of Wall and Floor Tiles, particularly of the level of experience that the nominee possesses.
Finally, we submit that this shortage will naturally allow the business to continue growing as supported by the financial reports provided. To further prove this fact, we refer you to a report produced by The Australian Taxation Office, which shows the performance of tiling businesses according to turnover. Based on this report, we can see that in only a short period of time, Condorsi has already reached the medium-size category. This is strong evidence that the business requires the position to continue operating in an industry that is clearly experiencing shortages.
It appeared to the delegate that the owner or director of the applicant company is related to the nominee.
The Tribunal took into account information provided by the Department that was four years old and noted that the applicant did not provide any up-to-date information. In those circumstances, the Tribunal was unable to be satisfied that at the time of decision the position associated with the nominated occupation of Wall and Floor Tiler was genuine, as required under reg 2.72(10)(f).
GROUNDS OF JUDICIAL REVIEW
The Court granted leave for the applicant to rely on an Amended application filed on 16 April 2025. The applicant abandons the grounds raised in the originating application and relies on one sole particularised ground of review. It reads as follows (less particulars):
The Second Respondent (Tribunal) made a jurisdictional error in relation to the adjournment of the review proceeding
THE APPLICANT’S SUBMISSIONS
The applicant’s first proposition is that the Tribunal’s discretion to adjourn a review proceeding is subject to the law of legal unreasonableness. Where the Tribunal decides not to adjourn a review proceeding, in circumstances where there is no intelligible justification for refraining from doing so, the Tribunal’s exercise of that review and the consequences of the determination may be set aside for jurisdictional error: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332.
The applicant’s second proposition is that the Tribunal has a discretion under the Act to obtain information relevant to the review. If the Tribunal refrains from obtaining information and there is no intelligible justification for not doing so, and the error is material to the conduct of the review, then it follows that the consequential decision on the review may also be set aside for jurisdictional error. One of the recognised tests for a legally unreasonable failure to obtain information is when that information comprises a critical fact which could easily be ascertained by the Tribunal: Ismail v Minister for Immigration [2024] HCA 2 at [25].
The applicant submits that the Tribunal did not observe these strictures in the applicant’s case.
The Tribunal did not provide a “real basis” for refusing the adjournment. The proceedings had been pending for a period of time and from the applicant’s perspective, the matter had been in abeyance. There is no evidence to suggest that there was communication from the Tribunal over two years. The Tribunal’s contact to the agent in December 2020 is submitted to have been done “out of the blue”. The applicant submits that the period between the invitation letter and the Tribunal’s refusal to the adjournment hearing was occupied by the Christmas and traditional holiday periods. This impacts on what may be considered reasonable.
The Tribunal took into account that the applicant’s agent had had time to prepare a case, however, absent a procedural direction from the Tribunal to suggest otherwise, it is not appropriate for the Tribunal to suggest that the applicant has had some years to provide the information. The applicant cannot be penalised for failing to provide information in advance before receiving the necessary procedural directions from the Tribunal.
Further, the Tribunal did not have a reason to suspect the applicant or the applicant’s agent was refraining from advancing the case. Any non-action by the applicant and its representatives could not lead to the inference that it did not wish to participate in the review process. Given the applicant was represented, the “proper” presumption was that the agent, in line with professional standards, would seek to assist the Tribunal and support the applicant’s case. Any conclusion to be drawn from the circumstances would be that the migration agent may not have, for some reason, received the Tribunal’s email or had overlooked that receipt or the deadline for responding.
In the alternative, the applicant argues that the Tribunal unreasonably failed to inquire into the circumstances of the applicant’s failure to respond to the invitation to provide information. Counsel for the applicant submits that it would have been “child’s play” for the Tribunal to obtain information from the applicant’s agent as to the lack of a response. Furthermore, even if in that January 2021 period, the Tribunal discovered the applicant’s migration agent was on holiday, this would assist them to know why the applicant might not have provided the information. If the Tribunal was armed with the reasons for the lack of response, the applicant submits that it would have reached a different view as to the question of the adjournment.
THE FIRST RESPONDENT’S SUBMISSIONS
The Applicant was taken to have received the 2 December letter which was sent by email to the applicant’s representative’s email address pursuant to ss 379C(5) and 379G(2) of the Act. Section 379C creates an irrebuttable presumption that the applicant was taken to have received the 2 December letter at the end of 2 December 2020: Singh v Minister for Immigration [2020] FCCA 780 at [42] per Judge Kirton. See also Lin v Minister for Immigration [2016] FCCA 554 at [24] per Judge Barnes, affirmed in Lin v Minister for Immigration and Border Protection [2016] FCA 933 at [19] per Bromberg J.
The first respondent refutes the applicant’s argument that there was nothing to indicate that the applicant or the migration agent had wilfully ignored the Tribunal’s request for further information and submits that it is irrelevant. Where the applicant was taken to have received the letter pursuant to the relevant sections of the Act and did not respond, it was open to the Tribunal to refuse the adjournment.
The 2 December letter warned the applicant of the implications of a non-response to the decision on the review. Although the applicant’s submissions provide a number of reasons pertaining to why the representative did not respond and inferences that should be drawn from these circumstances, the Tribunal did not have material before it to suggest that the reasonable course of action would be to adjourn for a longer period of time before finalising the decision: Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 at [80] per Mortimer J, Jagot and Bromberg JJ agreeing.
The applicant argues that the Tribunal’s finding that the applicant’s agent had time to prepare a case was not appropriate. However, this finding was open to the Tribunal as it is the applicant's responsibility to make their case before the Tribunal: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187] per Gummow and Hayne JJ. The Acknowledgement of Application letter sent by the Tribunal to the applicant on 13 June 2018 put them squarely on notice that any material or written arguments for the Tribunal to consider should be provided as soon as possible.
The first respondent submits that the adjournment refusal was reasonable: Li at [47] per Hayne, Kiefel and Bell JJ.
As to particular (h) which contends that the Tribunal had a duty to contact the applicant’s representative to ask whether they had received the 2 December letter, the Tribunal is not under a general duty to make further inquiries: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 at [43] per Gummow and Hayne JJ, Gleeson CJ agreeing.
The circumstances in this matter are not such that necessitated the Tribunal to exercise this duty. The receipt or non-receipt of the 2 December letter by the applicant was not such a case where the Tribunal would be found to have failed to make an 'obvious inquiry about a critical fact, the existence of which is easily ascertained': Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (SZIAI).
The receipt of the letter was not an issue on review and the inquiry was not ‘obvious’ in the case where the Tribunal had complied with the statutory requirements in sending the letter and there was no evidence to suggest it had not been sent to the email address or was “undeliverable”. The applicant’s representative had not engaged with the Tribunal at all to make it appear unusual that it did not reply to the 2 December letter.
To this point, the first respondent submits that it was not an ‘ obvious inquiry’ for the Tribunal to call the applicant or his representative to ask for further evidence where an invitation letter had already been sent. In any event, the duty of the Tribunal as prescribed by the Act is a duty to review and not a duty to inquire: see SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Furthermore, it was reasonable for the Tribunal to not take any further action to attempt to obtain information from the applicant, pursuant to ss 359C(1) or 359(1) of the Act, where the Tribunal has already sought to obtain this information by way of the 2 December letter. It was reasonable that the Tribunal did not attempt to contact the applicant’s representative after they did not respond to the 2 December letter in circumstances where there had been no engagement with the matter since the lodgement of the merits review application
CONSIDERATION
This matter revolves around two very short but discrete propositions. First, whether it was reasonable in the absence of a response from the applicant to the s 359 letter of 2 December, to proceed to finalise the review without any further information from the applicant, and second whether, in the circumstances of this case, it was unreasonable for the Tribunal not to make an enquiry of the applicant’s representative as to why there had been no response to the s 359 letter.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li (Li) (2013) 297 ALR 225 at [28], or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
During the course of oral submissions, counsel for the applicant properly conceded that the 2 December 2020 letter had been properly transmitted to the applicant’s representative and that receipt of that letter was deemed by operation of the Act, to have occurred.
The essential point is that the discretion to continue the review without adjourning the hearing of the matter in order for further information to be obtained was legally unreasonable. I do not accept this submission. The Act at the time of the decision pursuant to s 359C(1), s 360(3) and s 363A meant that the applicant lost the right to a hearing to give evidence and present arguments.
The Tribunal clearly turned its mind at [11] as to whether or not it should adjourn the matter pursuant to s 363(1)(b) of the Act, to enable the applicant to provide further information in support of its application. Ultimately, it decided that at [15] it would not exercise this discretion and deal with the matter on the basis of the information that was before it.
The Court is satisfied that this was a decision that was reasonably open to the Tribunal based on the information before it and for the reasons it gave. The fact that this decision was unfavourable to the applicant, in circumstances where another decision might have been made, is insufficient for jurisdictional error to be made out.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, the Court concluded at [131] that it was insufficient that different minds might reach different conclusions in a jurisdictional fact and that the test for illogicality or irrationality:
… Must be to ask whether logical or rational reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by reviewing court to be a logical or irrational or unreasonable simply because the conclusion that has been preferred to another possible conclusion.
The applicant’s second claim is that it was legally unreasonable from enquiring of the migration agent whether not he had received or was unaware of or had overlooked the invitation to provide information.
There is no general obligation on a Tribunal to investigate an applicant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SLGB (2004) 207 ALR 12 at [43]. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. The exception is where there is an obvious failure by the Tribunal to make an enquiry about a critical fact, the existence of which is easily ascertained: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25].
The Court does not consider that the failure of the Tribunal to enquire of the applicant’s representative, in circumstances where no response had been received to the s 359 letter, whether or not they wished to put in any further material, or had overlooked the invitation to provide the information was legally unreasonable.
The Court does not accept the submission that the request for the letter was made at the end of the year, and the response was due in the early new year, is an excuse for not providing the information.
To impose such a burden on the Tribunal would be unreasonable of itself. This aspect of the application for judicial review also has no merit.
The application must be dismissed with costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 23 May 2025
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