Explocia Tour Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 1330
•19 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Explocia Tour Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 1330
File number(s): SYG 85 of 2022
SYG 212 of 2022Judgment of: JUDGE DOUST Date of judgment: 19 August 2025 Catchwords: MIGRATION - Employer Nomination Scheme - respective applicants are employer and employee - grant of employee subclass 186 and dependant visa conditioned upon approval of employer nomination - whether Tribunal misconstrued and misapplied the requirements in 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 359A, 474, 476, 476(2), 477(1)
Migration Regulations 1994 (Cth) regs 2.87B(2), 5.19, 5.19(3), 5.19(4), 5.19(4)(e), 5.19(5), 5.19(5)(i), 5.19(5)(i)(i), 5.19(5)(i)(ii)
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 Division: Division 2 General Federal Law Number of paragraphs: 89 Date of hearing: 15 May 2025 Place: Sydney Counsel for the Applicants: Mr P Allport Solicitor for the Applicants: Ouyang & Lee Lawyers Solicitor for the First Respondent: Mr S Knuckey, HWL Ebsworth Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 85 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EXPLOCIA TOUR PTY LTD ACN 109 964 730
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:
19 AUGUST 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 212 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XUERONG PAN
First Applicant
ZHIJUN SU
Second Applicant
JOHNNY SU
Third Applicant
ZHIYAO SU
Fourth 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:
19 AUGUST 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The first 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 applicant in proceedings number SYG85 of 2022 (Explocia) and the first applicant in proceedings number SYG 212 of 2022 (Ms Pan) are employer and employee respectively.
On 19 March 2018, Explocia made an application to nominate Ms Pan under the Employer Nomination Scheme for a visa subclass 186. Ms Pan made a corresponding application for such visa on 20 March 2018. The role in respect of which Ms Pan was nominated was that of Sales and Marketing Manager.
The grant of visas to Ms Pan and the members of her family unit, who are the second to fourth applicants in proceedings SYG 212 of 2022, was conditioned upon Ms Pan being the subject of an approved nomination. That is, in order for Ms Pan (and her family members) to be entitled to the visa she sought, Explocia’s nomination of her had to be approved.
Explocia’s nomination application was rejected, first, by a delegate of the first respondent (Minister), then on 20 December 2021, by the Administrative Appeals Tribunal, now Administrative Review Tribunal (Tribunal). Ms Pan’s visa application was also rejected, as a consequence of the refusal of Explocia’s nomination application, both by the Minister’s delegate and then by the Tribunal on 21 January 2022.
By applications lodged with the Court on 18 January 2022 and 10 February 2022 respectively, Explocia and Ms Pan (and her family members) seek orders under s 476 of the Migration Act 1958 (Cth) (the Act) in respect of the decisions of the Tribunal to refuse the nomination and visa applications respectively. The applications were heard together on 15 May 2025.
There was no dispute that in order for Ms Pan and her family members to succeed in the proceeding, Explocia’s application had to succeed, as being the subject of an approved nomination was a criteria for the grant of the visa she sought. Equally, if the Tribunal decision concerning Explocia was affected by jurisdictional error, the Tribunal decision concerning Ms Pan and her family members would also be affected by jurisdictional error, and they would be entitled to the relief sought.
For reasons that follow, the Tribunal did not err, and the applications must be dismissed.
DOCUMENTS BEFORE THE COURT
At the hearing of the matter on 15 May 2025, the Court received into evidence, without objection:
(1)A court book filed in SYG 85 of 2022, which contained relevant documents concerning Explocia’s nomination application and application to the Tribunal;
(2)A court book filed in SYG 212 of 2022, which contained relevant documents concerning Ms Pan’s visa application and application to the Tribunal; and
(3)An affidavit of Lisa Mazzarol-Collins, affirmed 19 April 2022 which annexed a transcript of the hearing before the Tribunal of the applications for review of Ms Pan and Explocia.
OPERATIVE STATUTORY PROVISIONS
The criteria to be satisfied by both Explocia as the nominator and Ms Pan as the visa applicant were set out in the Migration Regulations 1994 (Cth) (Regulations).
The requirements for the approval of a nomination of a position are set out in reg 5.19(3) of the Regulations, as in effect at the time of application for nomination, as follows:
Approval of nomination
(3) The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b) otherwise—refuse to approve the nomination.
Located within reg 5.19(4) are requirements that apply to all nominations.
Pursuant to reg 5.19(4)(e), any nomination which related to a visa under the Temporary Residence Transition stream was subject to additional requirements under reg 5.19(5):
Requirements for approval—general
(4) The requirements to be met for the nomination to be approved…
…
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
…
Regulation 5.19(5) relevantly provided:
Temporary Residence Transition stream - additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
…
(i)unless it is reasonable to disregard subparagraphs (i) and (ii)—the nominator:
(i)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
(ii)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;
…
The training requirements the applicant was required to have complied with were set out in Division 2.19 of the Regulations, and at the time of the lodgement of the nomination application relevantly included the following:
2.87B Obligation to provide training
(1)This regulation applies to a person who was lawfully operating a business in Australia at the time of:
(a) the person’s approval as a standard business sponsor; or
(b)the approval of a variation to the person’s approval as a standard business sponsor.
(2) If, during all or part of:
(a)the period of 12 months commencing on the day the person is approved as a standard business sponsor; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(3) If, during all or part of:
(a)the period of 12 months commencing on the day the terms of the person’s approval as a standard business sponsor are varied; or
(b) a period of 12 months commencing on an anniversary of that day;
the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.
(4)The obligations referred to in subregulations (2) and (3) start to apply on the day the person is approved as a standard business sponsor.
(5)If the period of the person’s approval as a standard business sponsor is less than 6 years, the obligation referred to in subregulation (2) or (3) ends 3 years after the person is approved as a standard business sponsor.
(6)If the period of the person’s approval as a standard business sponsor is at least 6 years, the obligation referred to in subregulation (2) or (3) ends 6 years after the person is approved as a standard business sponsor.
(emphasis added)
The relevant instrument at the time of the applicant’s nomination application, as referred to in subregulation 2.87B(2) above was the ‘Specification of Training Benchmarks and Training Requirements Instrument 2013 IMMI 13/030’ (“IMMI 13/030”). Contained within IMMI 13/030 are the following ‘benchmarks’:
(A)recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or
(B)recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
That is, to be approved as a nominator, a sponsor was required, for each 12 month period following its approval as a standard business sponsor, to have devoted the requisite portion of its annual payroll towards training expenditure, with the percentage required determined by how that expenditure was directed.
Explocia’s grounds below include an allegation that the Tribunal failed to comply with the requirements of s 359A of the Act. That section provided (at the relevant time):
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
JURISDICTION AND ISSUES FOR DETERMINATION
The application to invoke the Court’s jurisdiction has been made within the time specified in s 477(1) of the Act.
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.
Explocia’s amended application filed on 1 May 2025 contained the following grounds:
1. The Tribunal failed to conduct a “review” and failed to “invite” the applicant.
Particulars
At the hearing, the Tribunal indicated that that further steps were required to be taken to complete the process of review. However the Tribunal proceeded to issue its decision without taking those steps or indicating same was no longer necessary.
2.Further or in the alternative, the Tribunal misconstrued and misapplied the requirements of the Migration Regulations 1994.
3.Further or in the alternative to 1 and 2, the Tribunal materially failed to comply with the requirements of section 359A(1) of the Act.
Particulars
The Tribunal failed to give information and invitation in relation to oral evidence of the nominee that since June 2019 there was a reduction in the applicant’s business and/or that she was paid a reduced salary.
4.Further or in the alternative to 1, 2 and 3, the Tribunal’s failure to adjourn the review was legally unreasonable.
However, only Ground 2 was pressed at the hearing.
The question whether the Tribunal decision concerning Explocia involved jurisdictional error of the type described in Ground 2 above is considered below, following a recitation of the relevant background: the nomination application and visa application, and the applications for review.
BACKGROUND
The Primary Applications
Explocia operates a business in the tourism sector. Ms Pan, born 1975, is a citizen of the Peoples Republic of China who holds a Diploma in Management of Economy from Guagzhou University.
On 19 March 2018, Explocia lodged with the (then) Department of Immigration and Border Protection an ‘Application for Employer Nomination for a Permanent Appointment’ within its business in Australia. The applicant nominated Ms Pan in the position of Sales and Marketing Manager in relation to a subclass 186 visa (the visa) under the ‘temporary residence transition’ scheme.
On 20 March 2018 Ms Pan lodged a corresponding application for the visa.
The Delegate’s Decision
On 10 August 2018, an officer of the Department of Home Affairs wrote to Explocia advising it that its application for approval of the nomination had been refused. The letter attached a copy of the decision record prepared by the delegated decision-maker (the delegate).
The delegate found that the applicant had not satisfied the requirement in reg 5.19(4)(e), namely, that the applicant satisfy the additional requirements prescribed in reg 5.19(5) for approval of nominations in the Temporary Residence Transition Scheme.
The delegate found no evidence that Explocia had made any contributions to an Industry training fund. Nor had Explocia provided records of expenditure on training during the period of its most recent standard business sponsorship between October 2012 and October 2015. It therefore failed to meet either Training Benchmark A or Training Benchmark B which meant it could not satisfy the requirement under reg 5.19(5)(i).
The delegate also observed that the nominator had not provided any reason why it was reasonable to disregard its failure to satisfy the requirements in 5.19(5)(i), nor could the delegate identify any such reason, and found that the nominator did not meet the requirements of the subregulation.
On 10 August 2018, the delegate also wrote to Ms Pan advising her of the decision in respect of Explocia’s nomination application and inviting comment. Ms Pan was given the option of withdrawing her application. In the event she did not do so within 28 days, the application for the visa would be refused.
By an application dated 26 August 2018, Explocia sought review by the Tribunal of the decision of the delegate.
On 26 September 2018, the Department wrote to Ms Pan advising that her application for the visa was refused.
Ms Pan made an application for review to the Tribunal in respect of the decision to refuse her visa application on 11 October 2018.
The Review by the Tribunal
On 5 August 2021, the Tribunal wrote to Explocia inviting it to provide information in relation to its application for review. The Tribunal’s letter noted that the Tribunal was required to be satisfied as to regs 5.19(4) and (5), and requested updated and current information addressing the criteria. The Tribunal invited Explocia, without limiting the information that may be given, to provide further information. The letter included a list of examples of the type of information Explocia should provide, including information about the identity of the business, about Explocia’s operation of a business, including its financial circumstances. One of the examples listed in the letter was:
10.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.
The Tribunal requested Explocia to provide the information by 19 August 2021.
Explocia responded to the request on 19 August 2021. Its representative sent an email to the Tribunal which attached a number of documents described in the body of the email employing the numbering in the Tribunal’s letter. That email only addressed the examples numbered from 1 to 9 in the Tribunal’s letter and did not address Item 10, above, which concerned training obligations.
Explocia’s representative foreshadowed in the email that there was further material forthcoming and requested further time to provide such information.
On 16 September 2021, the applicant’s representative wrote to the Tribunal again by email, attaching further documents. That email again adopted the numbering of the Tribunal’s 5 August 2021 letter, and set out the content of Item 10 of that letter, and responded as follows.
…
We submit: The most recent sponsorship approval for Explocia Tours Pty Ltd is enclosed.
Training Requirement: The applicant has met the training requirements for each year of most recent approval as a standard business sponsor. The applicant has provided the training plans for each year detailing the attendee’s name and immigration status, payroll for each year showing approval of industry training, and the invoice and receipts of payment to training organisations.
Evidence:
10.0 Notification of Sponsorship Approval 2012
10.3 Training plan 2019
10.3.1 Training plan 2019
10.3.2 Training plan 2019
10.4 Training plan 2019 Invoice & Receipt
10.5 Training plan 2018 - More Learning Pty Ltd
10.5.1. Training plan 2018 - Vocational Institute of Australia
10.6 Training plan 2018 invoice & Receipt
10.6 Training plan 2018 invoice & Receipt 2
10.6.1 Signed letter for Attendee – 2018
10.7 Training plan 2017
10.8 Training plan 2017 invoice & receipt
10.9 Training plan 2016
10.10 Training plan 2016 Invoice & Receipt
10.11 Training Requirement Reconciliation
10.12 Australian Attendee training - passport
…
On 26 October 2021, the Tribunal invited Explocia to attend a hearing on 16 November 2021 by video conference. Ms Pan and her family members were also invited to attend the hearing on that day. Each letter requested the parties to provide all documents they proposed to rely upon to the Tribunal by 9 November 2021.
The Tribunal hearing of both Explocia and Ms Pan’s applications for review proceeded on 16 November 2021 via audio-visual conference. Ms Clara Li attended the hearing on behalf of Explocia, and Ms Pan and her husband Mr Su attended. The hearing was conducted with the assistance of a Mandarin interpreter.
On 20 December 2021, the Tribunal affirmed the decision of the delegate to refuse the application for nomination.
The Tribunal decision concerning Explocia’s nomination
On 20 December 2021, the Tribunal affirmed the decision to refuse Explocia’s nomination application.
In its reasons, the Tribunal identified (at [10]) that:
10.The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
After summarising the documentary evidence submitted by Explocia prior to the hearing, and the oral evidence of Ms Li given at the hearing, the Tribunal turned to consider the stream specific requirements for the grant of the visa.
The Tribunal (relevantly) summarised the training requirements as follows:
Training requirements – reg 5.19(5)(i)
17.An application for approval of the nomination of a position made on or after 18 March 2018 but before 12 August 2018 must satisfy training requirements set out in reg 5.19(5)(i), unless it is reasonable to disregard them. The requirements are that the nominator:
•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
•Complied with the applicable obligations under Division 2.9 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor.
In the proceeding before this Court, Explocia’s counsel did not take issue with that summary.
The Tribunal went on (at [19]) to note that Explocia’s most recent sponsorship approval was from 25 October 2012 to 25 October 2015. However, the Tribunal concluded at [22] that Explocia was only required to comply with the training obligations in respect of the sponsorship years concluding on 25 October 2014 and 25 October 2015 as the regulation imposing the requirement commenced in July 2013 after the sponsorship commenced.
The Tribunal referred to the training benchmarks at [23] and following:
23.The training benchmarks and training requirements are specified in Instrument IMMI 13/030. The business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business. The training benchmarks for an established business are:
(A)recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or
(B)recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
24.The instrument provides that expenditure that can count towards Benchmark B includes:
a.Employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job.
b.Evidence of payment of external providers to deliver training for Australian employees.
c.On-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage and demonstrating:
i. The learning outcomes of the employee at each stage.
ii.How the progress of the employee will be monitored and assessed.
iii. How the program will provide additional and enhanced skills.
iv.The use of qualified Trainers to develop the program and set assessments;
and
v. The number of people participating and their skill/occupation.
d.Employment of a person who trains the businesses Australian employees who are Australian citizens and Australian permanent employees as a key part of their job.
25.The instrument provides that expenditure that cannot count towards Benchmark B includes training that is:
a. Delivered on-the-job, other than on-the-job training which meets the requirements set out in the preceding paragraph.
b.Confined to only one or a few aspects of the businesses (sic) broader operations, unless the training is in the primary business activity.
c.Only undertaken by persons who are not Australian citizens or permanent residents.
d.Only undertaken by persons who are principals in the business or their family members.
e.Only relating to a very low skill level having regard the characteristic and size of the business.
Explocia’s counsel did not take issue with the Tribunal’s summary of the requirements of the regulation and the IMMI above.
The Tribunal went on to note, at [26], that there was no evidence before it of any expenditure by Explocia in the years of the sponsorship period to an industry training fund to meet Benchmark A.
The Tribunal then turned to consider Benchmark B.
At [30], the Tribunal noted that the applicant had not produced, either to the Department or the Tribunal evidence to establish its payroll for the years ending 25 October 2014 and 25 October 2015.
At [33], the Tribunal said:
33.The applicant produced to the Tribunal a document titled Training Requirement Reconciliation which recorded, for each of the 2015 to 2019 years (confirmed by Mrs Li at the hearing as referring to financial years), the following information:
a.A calculation of the applicant’s wages and superannuation expenditure.
b.A calculation of the required training expenditure, being 1% of payroll.
c. A record of training expenditure incurred for the year.
d.A calculation of the variance between the required training expenditure and the training expenditure actually incurred.
e. Particulars of the invoices and receipts for the training expenditure.
f.The name and immigration status of the employee for whom training was provided.
g. The relevant Training Plans.
The Tribunal noted at [38], that the record indicated there had been no training expenditure in respect of the 2015 year. It raised that issue with Ms Li, who said that she would submit further details after checking with her accountant.
The Tribunal further noted (at [38]), that the training attributed to the 2016 year, appeared to refer to an invoice and receipt both dated 27 June 2017. The Tribunal noted that it appeared from the documents there was no evidence of any expenditure by Explocia on training until 27 June 2017.
The Tribunal also recorded its exchange with Ms Li concerning Mr Bin Liu, who had been the recipient of most of the training documented by Explocia. Ms Li stated that although he was a director and shareholder, he was also an employee.
The Tribunal noted (at [42]) that the applicant requested and was granted a further 14 days to submit further evidence and submissions, but that no further material was provided by Explocia after the hearing.
The Tribunal noted that the applicant had not provided particulars of its payroll for the years ended 25 October 2014 and 25 October 2015, so it was not possible to establish the training expenditure that would have been required to satisfy the training benchmark. The earliest expenditure demonstrated by Explocia was in June 2017, almost two years after the relevant sponsorship period. Accordingly, the Tribunal found (at [45]) that the applicant had failed to establish that it had complied with the training requirements in reg 5.19(5)(i)(ii).
The Tribunal then turned (at [46]) to consider whether it was reasonable to disregard Explocia’s non-compliance, and noted that it posed that question to Ms Li, who indicated she would provide a further written submission to the Tribunal after the hearing. In the event, no such submission was provided.
The Tribunal member considered the Department’s policy, which gives the example of where an applicant has not complied with the regulation, but nonetheless, in aggregate terms, met the required level of spending over the entirety of the sponsorship period. The Tribunal noted that those scenarios did not apply, as there was no evidence of any training expenditure over the relevant sponsorship period.
The Tribunal considered Ms Li’s claim that Explocia had provided Ms Pan with training. The Tribunal noted that was at a time when Ms Pan was not an Australian citizen or permanent resident, and concluded that such training did not influence the Tribunal to disregard non-compliance with the training requirement.
The Tribunal then considered whether the expenditure on training through external providers after the end of the sponsorship period should persuade the Tribunal to disregard Explocia’s non-compliance with the regulation. The Tribunal declined to take that approach, noting the absence of any evidence of training expenditure in the relevant period, and the fact that all of Explocia’s training subsequently had been for the benefit of a director and shareholder.
The Tribunal concluded (at [54]) that it was not reasonable to disregard Explocia’s non-compliance, and was not satisfied (at [56]) that Explocia met the requirements of reg 5.19 and accordingly the nomination was required to be refused, and the decision under review affirmed.
Following the decision in respect of Explocia’s nomination, the Tribunal wrote to Ms Pan and her family members on 4 January 2022, 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 18 January 2022.
On 21 January 2022, the Tribunal made a decision affirming the decision not to grant Ms Pan and her family members the visas they sought.
No independent issue arises in the present proceeding in respect of the claims of Ms Pan’s family members. As is the case with Ms Pan, the resolution of the present application so far as it concerns them, is conditioned upon the Tribunal decision in respect of Explocia’s nomination being affected by jurisdictional error.
CONSIDERATION
The grounds and arguments advanced by the applicants
At the hearing on 15 May 2025, Counsel for the applicants abandoned three of the four grounds initially raised in the application.
As a consequence, only the following grounds remained for determination:
Ground 2
Further or in the alternative, the Tribunal misconstrued and misapplied the requirements of the Migration Regulations 1994.
Explocia’s Submissions
Neither by its Outline of Submissions dated 1 May 2025, nor by its oral submissions did Explocia directly address the grounds contained in its Amended Application, other than the second ground.
That argument was most clearly articulated at [31] of Explocia’s submissions, as follows:
i)The tribunal should have determined that the applicants’ noncompliance could be reasonably disregarded given its subsequent attempts to adhere to the spirit of the legislation as a matter of law;
and/or
ii)This Court could exercise either its powers as a court of law and equity to disregard the omissions in the applicants’ evidence vis-vis the relevant sponsorship period.
iii)That the tribunal construed its consideration of the non-compliance and whether or not the same should be disregarded too narrowly.
iv)It is conceded the nominee was not an Australian citizen or permanent resident at the time of the relevant period.
v)It is noted that the policy of the Immigration Department at that time referred to Australian citizens and permanent residents.
vi)The decision not to disregard the gaps in the applicants’ evidence was therefore arguably misconstrued, and not considered “on a case by case basis” via which regard to the applicants’ merits were not assessed on a “case by case”.
vii)That the tribunal adopted an approach that was too narrow and which led it into error.
viii)Significantly, the tribunal held at [52] that the “applicant continued to incur training expenditure until 3 December 2018 in respect of the 2017, 2018 and 2019 financial years. The training requirement reconciliation indicates that the applicant’s total expenditure on training over this five-year period exceeded the amount calculated by the applicant as its aggregate required training expenditure over that period”.
ix)In effect, the applicant sought to rectify the very mischief that grounded the tribunal’s assessment of the instant matter.
Explocia submitted, by reference to the discretion in reg 5.19(5)(i) to disregard sub-paras (i) and (ii), that:
43.The foregoing regulation is critical to the court’s consideration of the overall merit of the applications before it. No evidence of nefarious activity or other unlawful behaviour was demonstrated in relation to the applicants.
44.At its highest, there was a either a failure to conduct training of the required type, or a failure to record and produce records of expenditure related to a legitimate training process for a period in excess of a decade ago.
In respect of Ms Pan, it was submitted that the legislation and regulations were not punitive in nature, but it was arguable that the net result of the Tribunal’s decision was in a de facto sense punitive and hence, ultra vires.
In his oral submissions, Explocia’s counsel argued that Explocia had made real and genuine attempts to comply with its obligations but had fallen short; its error was not patent, but latent, and the omissions were 10 or 12 years ago. The Tribunal gave insufficient weight to Explocia’s ongoing efforts to meet its obligations.
Distilled to its essence, the ground being advanced by Explocia was that the Tribunal erred by failing to exercise the discretion in reg 5.19(5) to disregard the training requirements in that subsection.
That submission is not accepted.
The Tribunal understood the nature of the discretion it had to exercise. At [46], the Tribunal described that discretion as follows:
46.The Tribunal then needs to consider whether it is reasonable to disregard non-compliance with this requirement.
Whilst the regulation itself does not speak of disregarding the nominator’s “non-compliance”, but rather, of disregarding the parts of the subregulation which require compliance by the nominator with the training requirements articulated elsewhere in the Regulations, Explocia did not contend to this Court that the Tribunal’s posing of the question in that way indicated error. Nor did the the manner in which the Tribunal posed the question evidence any error. The question remained the same, namely, whether, in the context of considering its nomination application, Explocia should be excused from compliance with the training requirements. The Tribunal had first considered whether Explocia had met the requirements in reg 5.19(5)(i) and determined that it had not, so the question of disregarding the requirements of the subregulation arose in circumstances where there had been non-compliance with them. It was logical for the Tribunal to approach the questions posed by reg 5.19(5)(i) in that order. The question of compliance was a narrower question to consider than the question whether the Tribunal should exercise its discretion to disregard the requirements of the subregulation. The extent and nature of any non-compliance would, in any event, be relevant to the question of the exercise of the discretion.
At [47], the Tribunal noted “…the Department’s policy which states that this decision should be made on a case-by-case basis and decision-makers should adopt a flexible approach.”
The Tribunal then addressed whether Explocia fell within the scope of the example in the policy (that of compliance with the aggregate training requirements), and concluded it was not able to be satisfied that Explocia met its aggregate training requirements over the relevant period.
The Tribunal did not restrict its consideration of the discretion to the example in the policy. Rather, the Tribunal then went on to consider the claim by Explocia that it had provided training to Ms Pan, but did not consider that training warranted the exercise of the discretion as there was no evidence of expenditure on that training, and Ms Pan was not a citizen or permanent resident at that time.
The Tribunal also considered Explocia’s training activities in the period subsequent to the sponsorship period (that is, the period concluding on 25 October 2015). The Tribunal noted that Explocia had not demonstrated any training expenditure in the 2016 or 2017 calendar years. Thereafter, the Tribunal found, all of the training provided between June 2017 and February 2019 was provided for the benefit of a director and shareholder in the applicant company, Mr Bin Liu, and concluded that for that reason, such expenditure could not have counted to satisfaction of the benchmark. The Tribunal was not persuaded to disregard the requirements of the regulation based upon Explocia’s conduct after the sponsorship period.
No other factor that might be considered relevant to the exercise of the discretion was advanced by Explocia or emerged from the evidence before the Tribunal.
Explocia argued before this Court that the criteria it was required to address were for a period 10 or 12 years prior. However it did not submit to the Tribunal that the time period during which the requirements had operated should be taken into account in favour of the exercise of the discretion. That factor is not one that should be regarded as so evident that the Tribunal was bound to expressly address it where it had not been raised by the applicant, nor is it so powerful that it compelled the Tribunal to exercise its discretion in Explocia’s favour.
Contrary to Explocia’s submission, the evidence before the Tribunal was not that Explocia had attempted to rectify its earlier non-compliance with the training requirements, such that the Tribunal should have given weight to those efforts. Explocia’s training activities in the post-sponsorship period would not have satisfied the requirements of the subregulation if they had occurred within the sponsorship period; all the training expenditure from June 2017 to February 2019 had been for the benefit of a director and shareholder. The Tribunal considered Explocia’s subsequent conduct, but was not persuaded that it warranted exercising the discretion. That was a conclusion that was open to the Tribunal in all of the circumstances.
Explocia had not simply missed meeting its training requirements in the relevant period by a whisker, such that there was an overwhelming common-sense reason to disregard the strict requirements of the subregulation. Explocia was ultimately unable to provide any evidence of its training activity during the sponsorship period, save for the general claim it had provided Ms Pan with some training. That was despite being on notice of the issue of its non-compliance during the sponsorship period from the delegate’s decision, despite the Tribunal’s letter of 5 August 2021 suggesting the types of evidence it should obtain, and despite being given additional time to supplement its case following the Tribunal hearing. Even armed with the knowledge of the difficulties it faced, Explocia made no attempt to provide any explanation for its failure to meet the requirements, identify any other reason that might excuse its failure, or mount some other case to demonstrate that it was deserving of a favourable exercise of the discretion. The evidence before the Tribunal about Explocia’s training activity subsequent to the sponsorship period did not demonstrate that its conduct was so exemplary (or even so regular) as to support the exercise of discretion in its favour; there were two years where there was no evidence of training expenditure at all. Unfortunately, the entire sum of the evidence of Explocia’s training activity reflected poorly upon it, and there was little else before the Tribunal other than the fact that the discretion existed, and that a deal of time had passed since the sponsorship period, to support the exercise of the discretion. The unfortunate circumstance for Explocia, and for Ms Pan, was that the case for the exercise of the discretion in Explocia’s favour that emerged from the evidence before the Tribunal, was weak, at best.
The Tribunal took into account all of the circumstances of the matter that were relevant to the exercise of its discretion. The conclusion it reached was well and truly open to it, and was not the consequence of it having misunderstood the scope of its discretion, or adopted too narrow an approach.
The Tribunal did not err, and the applications should be dismissed with costs. I will hear the respondent as to whether it seeks an order for costs in a fixed sum.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 19 August 2025
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