Essjay Engineering Pty Ltd v Minister for Immigration
[2025] FedCFamC2G 1181
•25 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Essjay Engineering Pty Ltd v Minister for Immigration [2025] FedCFamC2G 1181
File number(s): SYG 2442 of 2020; SYG 2549 of 2020 Judgment of: JUDGE DOUST Date of judgment: 25 July 2025 Catchwords: MIGRATION - Employer Nomination Scheme - respective applicants are employer and employee - grant of employee subclass 186 visa conditioned upon approval of employer nomination - whether Tribunal gave an unreasonably narrow interpretation of its discretion in sub-para 5.19(3)(f)(ii) of the Migration Regulations 1994 (Cth) - the Tribunal did not err - the applications must be dismissed Legislation: Australian Constitution para 75(v)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 140
Migration Act 1958 (Cth) ss 474, 476, 476(1), 476(2), 499
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) Item 6705(1) of pt 1 of sch 1
Migration Regulations 1994 (Cth) regs 2.87B, 5.19(3), 5.19(3)(f), 5.19(3)(f)(i), 5.19(3)(f)(i)(A), 5.19(3)(f)(ii), 5.19(4), cl 186.223 of sch 2
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116
Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60]
Re Drake & Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 635
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 14 May 2025 Place: Sydney Solicitor for the Applicant: Mr M Jones, Migrant Law Solicitor for the First Respondent: Mr S Knuckey, HWL Ebsworth Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2442 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ESSJAY ENGINEERING PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
25 JULY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs.
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).
ORDERS
SYG 2549 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAGTAR SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
25 JULY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs.
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 DOUST:
INTRODUCTION
The applicants in the two matters the subject of this judgment are employer and employee.
In 2017, the employer, Essjay Engineering Pty Ltd (Essjay) made an application to nominate its employee, Jagtar Singh, under the Employer Nomination Scheme for a visa subclass 186. Mr Singh made a corresponding application for such visa. The role in respect of which Mr Singh was nominated was that of Facilities Manager.
The grant of Mr Singh’s visa was conditioned upon him being the subject of an approved nomination. That is, in order for Mr Singh to be entitled to the visa he sought, Essjay’s nomination of Mr Singh had to be approved.
Essjay’s nomination was rejected, first, by a delegate of the first respondent (Minister), then on 23 September 2020, by the Administrative Appeals Tribunal, now Administrative Review Tribunal (Tribunal). Mr Singh’s visa application was also rejected as a consequence, both by the Minister’s delegate and then by the Tribunal.
By applications lodged with the Court on 28 October 2020 and 11 November 2020 the applicants seek orders under s 476 of the Migration Act 1958 (Cth) (the Act) in respect of decisions to refuse the nomination and visa applications respectively. The applications were heard together on 14 May 2025.
In order for Mr Singh to succeed, Essjay’s application must succeed.
The matter raises a single issue for consideration: whether the Tribunal applied an unreasonably narrow interpretation of the scope of its discretion under sub-paragraph 5.19(3)(f)(ii) of the Migration Regulations 1994 (Cth) (the Regulations). That provision gave the decision-maker the discretion to disregard requirements in sub-para 5.19(3)(f)(ii) concerning satisfaction by the nominator of its training requirements.
For reasons that follow, the Tribunal did not err, and the applications must be dismissed.
DOCUMENTS BEFORE THE COURT
The following documents were received into evidence without objection in respect of both matters:
(1)A court book filed in SYG 2442 of 2020, which contained relevant documents concerning Essjay’s nomination application and application to the Tribunal;
(2)A court book filed in SYG 2549 of 2020, which contained relevant documents concerning Mr Singh’s visa application and application to the Tribunal; and
(3)An affidavit of Winnie David affirmed 4 February 2021, annexing a transcript of the combined hearing before the Tribunal of the applications for review of Essjay and Mr Singh.
OPERATIVE STATUTORY PROVISIONS
It was common ground between the parties that the version of reg 5.19(3) that applied in respect of Essjay’s nomination application, was as follows:
Temporary Residence Transition nomination
(3) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i) is made in accordance with subregulation (2); and
(ii)identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii) identifies an occupation, in relation to the position, that:
(A) is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa; and
(b) the nominator:
(i)is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Temporary Work (Skilled)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii) is actively and lawfully operating a business in Australia; and
(iii)did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c) either:
(i) both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in subparagraph (a)(ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii) all of the following apply:
(A)the person holds the Subclass 457 (Temporary Work (Skilled)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B) the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d) for a person to whom subparagraph (c)(i) applies:
(i)the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f) either:
(i) the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii) it is reasonable to disregard subparagraph (i); and
Note:Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.
(g) either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
(Underlining added)
That version of the regulation was not the version current as at 23 September 2020, the date of the Tribunal’s decision. The regulation was repealed and replaced by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth). However, the continuing application to Essjay’s nomination application of the regulation as it was in force before the amendments was preserved by Item 6705(1) of Part 1 of Schedule 1 of the above instrument, which provided:
Despite the amendments of regulation 5.19 made by the amending regulations, that regulation (including any instruments made under it), as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to an application for approval of the nomination of a position made before the commencement day.
JURISDICTION AND ISSUES FOR DETERMINATION
There is no dispute that the Court has jurisdiction to entertain the applications.
That jurisdiction is conferred on it pursuant to s 476(1) of the Act, being the same original jurisdiction as that of the High Court under paragraph 75(v) of the Constitution, namely, jurisdiction where a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Both a writ of mandamus and an injunction were sought in the application.
Nor was there any dispute between the parties that the Court’s jurisdiction is exercisable to correct jurisdictional error. Where a decision is affected by jurisdictional error it will not be a “privative clause decision” within the meaning of s 474 of the Act, and therefore, will not be excluded by s 476(2) of the Act from the Court’s review jurisdiction.
Jurisdictional error describes a failure by a person or body given authority under a statute to exercise a power to comply with a condition attaching to the exercise of that power, where that failure has the result that the decision or exercise of power is regarded as lacking the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; and in some cases, makes an erroneous finding or reaches a mistaken conclusion; or fails to observe some applicable requirement of procedural fairness: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [2] - [3]. In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: ibid [7].
Where it has jurisdiction, the Court is not confined to the issue of an injunction or the writs referred to in paragraph 75(v) of the Constitution. Rather, where it has jurisdiction, the Court is empowered by s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to make such orders as it considers appropriate.
There was also no dispute between the parties that if the Tribunal’s decision in respect of Essjay’s nomination contained jurisdictional error, the Tribunal decision in respect of Mr Singh’s visa application was affected by that error, and accordingly, relief should be granted in respect of the latter decision as well.
The question whether the Tribunal decisions involved jurisdictional error is considered below, following discussion of the visa and nomination application and the applications for review.
The sole ground in Essjay’s application to this Court was as follows:
Grounds of application
1.The Tribunal applied an unreasonably narrow interpretation of the scope of its discretion under subparagraph 5.19(3)(f)(ii) of the Migration Regulations 1994.
Particulars
In assessing whether it would be reasonable to disregard the requirement of subparagraph 5.19(3)(f)(i) in relation to the Applicant's training requirements as nominator, the Tribunal restricted itself to considering the circumstances given as examples in the Department's Procedures Advice Manual, without considering any other circumstances that might reasonably justify disregarding the requirement.
The sole ground in Mr Singh’s application to this Court was as follows:
1.The Tribunal's decision to affirm the refusal of the Applicant's visa on the ground that he was not the subject of a valid nomination under s 5.19 cannot stand because the decision to affirm the refusal of the nomination was affected by jurisdictional error.
Particulars
The decision in this case to affirm the delegate's refusal of the visa was based on a decision to affirm the refusal of the Employer Nomination Scheme nomination. That decision has been challenged (file no. SYG2442/2020) and if that decision is quashed by the Court then there would be no lawful basis to refuse the visa application.
The question whether the Tribunal decisions involved jurisdictional error is considered below, following a recitation of the history of the matters.
BACKGROUND
Essjay is a corporation that operates a business in the transport, postal and warehousing industry.
On 30 June 2017, Essjay lodged with the then Department of Immigration and Border Protection (Department) an ‘Application for Employer Nomination for a Permanent Appointment’ nominating Mr Singh in the position of Facilities Manager (a position with ANZSCO code 149913) in relation to a subclass 186 visa (the visa) under the ‘Temporary Residence Transition’ scheme.
On 30 June 2017 Mr Singh lodged an application for the visa. Clause 186.223 of sch 2 of the Regulations incorporated, as a condition for the grant of that visa, that the Minister had approved the associated business nomination application.
The decisions of the Minister’s delegate
On 6 December 2017, the Department wrote to Essjay advising that its application for approval of its nomination had been refused. The letter attached a decision record of the Minister’s delegate, which stated that the nomination was refused as it did not meet the requirements of regs 5.19(3) or 5.19(4).
The delegate of the Minister who made the decision stated that:
…it has not been demonstrated that the nominator has fulfilled the commitments made relating to meeting the training requirements during the period of the nominator's most recent approval as a standard business sponsor.
That was a reference to the criterion in reg 5.19(3)(f)(i)(A), namely:
(i) the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
…
The delegate noted that Departmental records showed Essjay was approved as a standard business sponsor from 5 September 2013 until 5 September 2016 on the basis of providing evidence of paying contributions to an industry training fund in support of meeting Training Benchmark A, but had not provided complete and consistent records of its payroll and staff training expenditure for that period.
The delegate noted that Essjay had provided receipts in March 2014, March 2015 and March 2017 from a registered training organisation. Those receipts concerned two persons, in respect of whom the delegate had no evidence of their being employed by Essjay. There was no evidence of any expenditure on staff training in the last year of the standard business sponsorship.
The delegate concluded:
Therefore, regulation 5.19(3)(f)(i)(A) is not met, and the nominator does not meet regulation 5.19(3)(f)(i).
In addition, there has been no reason identified to disregard subparagraph 5.19(3)(f)(i).
…
Therefore, the nominator does not meet regulation 5.19(3)(f).
Therefore, regulation 5.19(3) does not apply to the nomination.
The delegate concluded that Essjay had only provided evidence directed to satisfying reg 5.19(3) and insufficient claims or evidence to demonstrate satisfaction of reg 5.19(4).
The delegate refused the nomination.
On 6 December 2017, the Department also wrote to Mr Singh advising that Essjay’s nomination had been refused. Mr Singh was given the option of withdrawing his application. In the event he did not do so within 28 days, his application for the visa would be refused.
On 17 January 2018, the Department wrote to Mr Singh advising that his application for the visa was refused.
The attached decision record recited that the delegate was not satisfied that cl 186.223 of sch 2 of the Regulations was satisfied. That clause provided that:
186.223
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
(b)in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and
(c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The Minister has approved the nomination.
(3) The nomination has not subsequently been withdrawn.
(4) The position is still available to the applicant.
(5)The application for the visa is made no more than 6 months after the Minister approved the nomination.
The delegate went on as follows:
On 06/12/2017 the nomination lodged by ESSJAY ENGINEERING PTY LTD, being the nomination referred to in paragraph 186.223(1), was refused by a delegate of the Minister for Immigration and Border Protection.
As the appointment has been refused, clause 186.223(2) is not met.
As a result, JAGTAR SINGH does not satisfy the requirements of clause 186.223.
Decision
As clause 186.223 is not satisfied, I find the criteria for the grant of an Employer Nomination Scheme (subclass 186) visa are not satisfied. Therefore, I refuse the application by the applicant for an Employer Nomination Scheme (subclass 186) visa.
The Review by the Tribunal
On 22 December 2017, Essjay applied for review of the decision to refuse its nomination application.
Mr Singh also made an application to the Tribunal on 5 February 2018 for review of the decision to refuse his visa application.
By letter dated 2 January 2018 to Essjay, and 6 February 2018 to Mr Singh, the Tribunal acknowledged the applications and advised:
If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.
On 15 June 2020, the Tribunal wrote to Essjay, by a letter titled ‘Invitation to provide information’. In that letter the Tribunal advised, inter alia:
In order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Temporary Residence Transition nomination stream, the relevant criteria are in rr.5.19(2) and (3) of the Regulations.
The Tribunal now requires updated and current information addressing these criteria. Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give the following information in writing.
Thereafter the Tribunal set out a series of categories of information and documents it sought from Essjay, including:
8.Information about the applicant’s compliance with training commitments and sponsorship obligations;
· Information regarding the most recent period of approval as a standard business sponsor (i.e. Notification of sponsorship approval).
· Information, together with independent supporting evidence, to demonstrate that the applicant met the training requirements for each year of most recent approval as a standard business sponsor. For example, information about the applicant’s payroll for each year of most recent approval as a standard business sponsor, payments made to an industry training fund, receipts of payment to training organisations and details of the employees that received the training, including evidence of the employee’s employment and immigration status at the time they received the training.
(emphasis in the original)
The Tribunal advised Essjay to provide the information by 29 June 2020, but advised that the Tribunal would entertain a request for an extension of time. In the event, Essjay applied, on 26 June 2020, for such an extension due to its accountant being busy.
The Tribunal granted an extension until 27 July 2020.
On 27 July 2020, Essjay’s representative wrote to the Tribunal by email enclosing “documents as requested”. The documents attached under cover of the email included certificates showing that Jaskirat Kaur had undertaken training with Expert Training Solutions Pty Ltd in March 2018 and March 2019, tax returns and financial records, PAYG summaries for Mr Singh for the years ending 30 June 2014, 30 June 2015, 30 June 2016, 30 June 2017, 30 June 2018, 30 June 2019 and 30 June 2020, and Mr Singh’s employment contract.
On 6 August 2020, the Tribunal wrote to Essjay, advising, inter alia that:
We have considered the material before us but we are unable to make a favourable decision on this information alone.
The Tribunal invited Essjay to appear (by telephone) before the Tribunal on 1 September 2020 to give evidence and present arguments, and invited it to complete and return an attached ‘Response to hearing invitation’ form.
The latter advised (emphasis in original):
Please provide at least 7 days before the hearing all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.
The Tribunal sent Mr Singh a letter dated 6 August 2020 in substantially identical terms.
Both Essjay and Mr Singh completed and returned the ‘Response to hearing invitation’ form. In response to ‘Part 3 – Documents to be relied on at the hearing’ both parties selected ‘yes’, with Mr Singh’s form referring specifically to a written submission.
The hearing of both applications proceeded on 1 September 2020.
Following the hearing, on 11 September 2020, Essjay’s representative sent the Tribunal a ‘Submission’ which included the following:
…
As advised during the hearing. I have attached the following documents to demonstrate that Nominator meets the Training benchmark requirements.
We want to respectfully submit that Training Invoices, Training Receipts, Schedule of Training and Completion letters with dates are attached with for your reference.
TRAINING BENCHMARKS (B) for Financial Years 2013-14, 2014 -15 & 2016-17
Invoice & Receipt 2014 7th March 2014
Schedule of Training 10th March 2014 – 23rd March 2014
Completion Letter 26th March 2014
Invoice & Receipt 2015 5th March 2015
Schedule of Training 09th March 2015 – 22nd March 2015
Completion Letter 25th March 2015
Training Benchmarks (A) Fees Paid to TAFE on 10th March 2016 – No Training was provided to the any Australian Employee during the financial year of 2015 – 16.
Invoice & Receipt 2017 23rd March 2017
Schedule of Training 27th March 2017 – 9th April 2017
Completion Letter 11th April 2017
…
Attached with the submission were tax invoices and receipts from Australis Institute of Technology and Education for 2014, 2015 and 2017, along with a receipt for payment of $2000 to TAFE Sydney Institute and information regarding the employment and immigration status of Satwinder Kaur, who was the recipient of the 2017 Australia Institute training.
The Tribunal decision concerning Essjay’s nomination
On 23 September 2020, the Tribunal affirmed the decision to refuse the nomination.
In its decision, the Tribunal noted as follows (at [13]):
13.At the conclusion of the hearing, the Tribunal invited the applicant to provide further documentation including;
· Evidence of meeting training obligations and commitments during the period of most recent approval as a standard business sponsor, including evidence of payment towards meeting these obligations and the employment/citizenship/residency status of attendees.
· Business bank account statements showing payment of salary to the nominee for period August 2018 to August 2020
· Nominee’s bank statements showing deposit from applicant of salary for period August 2018 to August 2020
· Workers Compensation policy details
· Nominee’s superannuation details
At [17], the Tribunal framed the issue that arose for determination on the review application, as follows:
17.The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The Tribunal noted that Essjay’s most recent approval as a standard business sponsor (SBS) was 5 September 2013 to 5 September 2016 (at [21]).
At [23], the Tribunal summarised the effect of reg 5.19(3)(f) as follows:
23.Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The Tribunal then set out reg 2.87B, which imposes an obligation upon a standard business sponsor to comply with requirements relating to training specified by the Minister in an instrument for the purposes of the subregulation.
The Tribunal then set out the training benchmarks which are specified in the IMMI 13/030 at [25]:
25.The relevant training benchmarks are specified in IMMI 13/030. Relevantly, a business meets the benchmarks by demonstrating:
A.recent expenditure to the equivalent of at least 2% of the payroll of the business to an allocated industry training fund and a commitment to maintain expenditure in each fiscal year for the term of approval as a sponsor, or
B.recent expenditure to the equivalent of at least 1% of the payroll of the business in the provision of training to employees of the business and a commitment to maintain expenditure to that level each fiscal year for the term of approval as a sponsor.
The Tribunal set out, at [26] and [27], the types of expenditure that were capable of counting towards the benchmarks in IMMI 13/030, and the types that could not count towards the benchmark. The former category included payment for formal study by employees of the business who are Australian citizens or permanent residents as part of the organisational training strategy. The latter category (excluded types of expenditure) included training that is only undertaken by persons who are not Australian citizens or permanent residents and training that is only undertaken by persons who are principals in the business or their family members.
At [30], the Tribunal noted that the relevant sponsorship years were 5 September 2013 to 4 September 2014, 5 September 2014 to 4 September 2015, and 5 September 2015 to 5 September 2016.
At [32], the Tribunal noted that it raised at the hearing that there was no evidence before it to demonstrate Essjay’s 2014 financial year payroll expenditure. It then noted the material provided by Essjay following the hearing, and included at [34], that there was no information before it to show Essjay’s 2014 payroll expenditure. The Tribunal then set out in a table at [35], the information it had before it as to Essjay’s payroll, and its training expenditure for the three periods referred to above.
The table showed that although there was evidence that in the 5 September 2013 to 4 September 2014 period, Essjay incurred $1,500 in training costs, the Tribunal was unable to determine what percentage of payroll that constituted. Accordingly, the Tribunal could not be satisfied that either of the A or B benchmarks in IMMI 13/030 had been met over that period.
The Tribunal also recorded (at [40]) that at the hearing it had raised a concern, in respect of the 5 September 2013 to 4 September 2014 period, there was no evidence to demonstrate that Ranjit Singh, the recipient of the training provided in March 2014 by the Australis Institute of Technology and Education, was either an Australian citizen or permanent resident. That same concern also arose in respect of the 5 September 2014 to 4 September 2015 period, as Ranjit Singh was the recipient of the training by that organisation in that period as well.
The Tribunal was also concerned that Essjay’s accounts did not show payment of the Australis Institute training invoices. Essjay’s accountant had submitted that those invoices were paid personally by Essjay’s director, and not reimbursed by Essjay, and therefore inadvertently not shown in Essjay’s financial statements. In the absence of evidence of the payments the Tribunal gave the Australis Institute receipts little weight.
The Tribunal concluded as follows:
52.Based on the evidence before it, the Tribunal finds that the applicant has failed to provide corroborative and persuasive evidence to establish that they complied with their training benchmark commitments and obligations for the period of the most recent standard business sponsorship, under either training benchmark A or training benchmark B.
53.Accordingly, the Tribunal finds that the applicant has not complied with its training benchmark commitments and obligations under r.5.19(3)(f)(i) in the period of its most recent standard business sponsorship. Consequently, the applicant does not meet the requirements in r.5.19(3)(f)(i). As such, consideration must be given to whether it is reasonable to disregard the applicant’s training requirements.
The Tribunal went on at [54] to consider the Department’s policy, which is described as “not determinative”, which stated as follows (as extracted by the Tribunal):
54.Disregarding regulation 5.19(3)(f)(i)………..should only be considered if the delegate is satisfied the nominator has not, at any stage of the most recently approved standard business sponsorship, failed to maintain their commitment to the ongoing training of Australian citizens and permanent residents in their industry, as specified within the training benchmarks.
…
The policy went on to give some examples, including where the aggregate spending over the period of the sponsorship met the sum of the annual obligations even though it was below the benchmark percentage in any given year.
Where the Tribunal indicated its intention to have regard to Departmental policy, it made the following note in a footnote:
The Tribunal notes that whilst Department Policy may provide guidance, it is not bound to follow it. See Brennan, J in Re Drake (No2)(1978-1980) 2 ALD 634
At [55], the Tribunal observed that the only evidence it had of payment for training by Essjay was in respect of the TAFE training in 2016, which showed payment by Mastercard.
The Tribunal noted (at [56]) that it had given Essjay an opportunity at the hearing to provide supporting evidence to show the personal payment by the company’s director of the training costs, or to demonstrate Mr Ranjit Singh’s employment and citizenship/residency status, but had not received evidence addressing those issues, and accordingly, could not be satisfied that Essjay met its training obligations in the first two years of its sponsorship.
The Tribunal went on as follows:
58.The Tribunal has taken into consideration the applicant's submissions and all the evidence before it and has considered a number of factors in respect of whether to disregard the training benchmark requirements in r.5.19(3)(f)(i). In the circumstances overall, specifically the lack of verifiable evidence to support the applicant’s claims. The Tribunal therefore considers it is not reasonable to disregard the training requirements in r.5.19(3)(f)(i) under r.5.19(3)(f)(ii).
59.The Tribunal for the reasons given, finds that r.5.19(3)(f)(ii) is not met and accordingly, the applicant does not meet the requirement in r.5.19(3)(f).
The Tribunal went on to conclude that the nomination could not be approved, and affirmed the decision of the delegate.
Following the decision in respect of Essjay’s nomination, the Tribunal wrote to Mr Singh on 24 September 2020, inviting any comment in respect of that decision, which it characterised as information that may be the reason or part of the reason for affirming the decision under review. The Tribunal sought any response by 8 October 2020.
On 8 October 2020, Mr Singh sought further time from the Tribunal to respond, but the Tribunal declined that request.
On 12 October 2020, the Tribunal made a decision affirming the decision concerning Mr Singh. It determined in respect of Mr Singh’s family unit members it had no jurisdiction to determine their application. The critical parts of the decision for present purposes were the following:
27.On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.186.223(2) of Schedule 2 to the Regulations.
28.As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.
No issue arises in the present proceeding in respect of Mr Singh’s family members.
CONSIDERATION
The applicant submitted that whilst the language of reg 5.19(3)(f)(ii) – “it is reasonable to disregard subparagraph (i)” imports a broad discretion, the language of the policy from which the Tribunal quoted was highly restrictive. In support of that proposition, the applicant pointed to the instruction in the policy that the exercise of the discretion “should only be considered” where “the nominator has not, at any stage of the most recently approved standard business sponsorship, failed to maintain their commitment to the ongoing training”.
The applicant pointed to Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116, where the Full Federal Court said (at [93]), that a direction given under s 499 of the Act may not fetter a discretion that arises under the legislation, and submitted that a policy could not fetter a discretion in such a manner.
There was no resistance to that proposition from the Minister.
It does not follow from that proposition, however, that a decision-maker should not have regard to policy, or that any reference to policy necessarily involves error. A decision-maker may, and ordinarily should, at least have regard to any relevant policy. Provided such consideration is undertaken without disregarding the circumstances of the particular case, the consideration and application of policy is desirable as it promotes consistency of decision-making where numerous decision-makers exercise the same statutory power. Inconsistency suggests an arbitrariness not compatible with commonly accepted notions of justice: Re Drake & Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 635 at 639 (Drake).
The Tribunal’s reasons do not reveal that the Tribunal slavishly applied the policy in disregard of the breadth of its discretion. Nor did it proceed in disregard of the circumstances of the particular matter before it. At [54], the Tribunal stated that it had regard to the Departmental policy, which it described as “not determinative”. It referenced Drake at that point, noting that the Tribunal was not bound to follow policy. It then went on to decline to exercise the discretion, having considered the submissions and all the evidence before it.
Although the Tribunal’s reasoning in respect of the exercise of its discretion is brief, and expressed in general terms, the applicants’ case before the Tribunal was that it did not advance for consideration any factor that might be said to militate in favour of disregarding the requirements of reg 5.19(3)(f)(i). Essjay did not submit, either at the hearing, or in its later written submission, that the Tribunal should exercise the discretion in reg 5.19(3)(f)(ii). Nor did Essjay identify any reasons that might have supported such exercise.
Nor did the evidence before the Tribunal throw up any reason or factor that stood out as militating in favour of the exercise of the discretion to disregard the training requirements. For example, the evidence did not indicate that Essjay’s non-compliance was only minor or trifling. The Tribunal observed significant shortfalls in Essjay’s evidence across the sponsorship period. Nor did Essjay demonstrate any particular merit in some other respect that might warrant the exercise of the discretion in its favour. No particular compassionate considerations emerged from the evidence, even though the Tribunal member had invited the identification of such circumstances when it enquired during the hearing about the impact of the COVID pandemic on the business. Essjay pointed in its submissions before this Court to the fact that in the period subsequent to its sponsorship period it had expended some monies on training. The Tribunal set those payments out at [36] of its reasons, so it should be inferred that the Tribunal took those into account when it considered the exercise of its discretion.
Essjay’s representative submitted that the Tribunal erred because, although the Tribunal had enquired at the hearing whether Essjay could provide documents necessary to demonstrate compliance with reg 5.19(3)(f)(i) and had identified the types of documents necessary to demonstrate that compliance, it did not ask Essjay’s representative to provide documents in support of the exercise of the discretion in reg 5.19(3)(f)(ii). It is correct to say that the Tribunal did not do so in express terms. It does not follow that the Tribunal erred, let alone erred in a way that should be regarded as jurisdictional, that is erring in a way to deprive its review of the authority of the statute.
The Tribunal was not obliged, as a matter of the proper exercise of its jurisdiction to suggest to the applicants’ agent that Essjay should try to mount an argument as to why the requirements of reg 5.19(3)(f)(i) be disregarded. It was not incumbent on the Tribunal to make the applicants’ case for them: Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60]. The Tribunal went beyond what was required of it when it identified the evidential gaps in Essjay’s material, and identified the classes of documents that might be capable of bridging those gaps. The Tribunal otherwise gave Essjay an opportunity to make oral submissions at the hearing (Tcpt, p 22, L28-29) or to provide further submissions in writing (Tcpt, p 23, L24-25). It invited the company’s director, Mr Sidhu, at the conclusion of his evidence to say anything further he wished to tell the Tribunal (Tcpt: p 25, L4). The Tribunal did not limit the issues that evidence or those submissions might address, or, as the applicant contends at [21] of its Outline of Submissions, close off any opportunity the applicant had to advance a case for consideration of the discretion. The Tribunal twice invited the parties to add anything they wished before it adjourned the hearing.
The Tribunal did not err in its decision in respect of Essjay’s nomination application, and its ground of review is not made out. Accordingly, Mr Singh may not make out his ground.
The applications shall be dismissed with costs, and the parties will be given an opportunity to address as to the amount of such costs.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 25 July 2025
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