Filho v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 247
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Filho v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 247
File number(s): BRG 276 of 2024 Judgment of: JUDGE COULTHARD Date of judgment: 21 February 2025 Catchwords: MIGRATION – Employer Nomination (Permanent) (Class EN) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – error of law – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5(2)(b), 349, 351, 476(1),
Migration Regulations 1994 (Cth) Item 1114B of Schedule 1, reg 5.17 of Schedule 1, cl 186.243(2) of Schedule 2, cl 186.311 of Schedule 2
Permanent Employer Sponsored Entry – ENS and RSMS Visa Applications – Subclass 186/187 cl 3.6.12, cl 3.11.1
Cases cited: Kumar v Minister for Immigration & Border Protection [2018] FCA 140
Thlork v Minister for Immigration & Border Protection [2019] FCA 333
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 12 February 2025 Date of hearing: 12 February 2025 Place: Brisbane Solicitor for the Applicants: The applicants appeared in-person. Counsel for the First Respondent: Ms De Marco Solicitor for the Respondents: Ms Satyendra - MinterEllison. The second respondent filed a submitting appearance, save as to costs. ORDERS
BRG 276 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANOEL CALIXTO ALVES FILHO
First Applicant
SIRLENE DE SOUZA VEIRA ALVES
Second Applicant
CAROLINE DE SOUZA CALIXTO (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The first, second, third and fourth applicants are to pay the first respondent’s costs, fixed in the amount of $8371.30.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicants are citizens of Brazil. They arrived in Australia on 12 March 2008. The first applicant (“the applicant”) held successive subclass 457 visas, the most recent of which was granted on 6 October 2015. It was not a requirement for the grant of a subclass 457 visa that the applicant have functional English. Since his arrival in Australia, the applicant has worked almost continuously for JBS Australia Pty Limited (“JBS”) as meatworker. The applicant had worked for JBS in Brazil before coming to Australia.
On 1 October 2019, the applicant applied for an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa in the Labour Agreement Stream (“the visa”) (Court Book (“CB”) 22-56). The applicant was nominated by his employer JBS in the position of Skilled Meat Worker ANZSCO Occupation Code 8312-11 (“the nominated position”). The applicant’s wife and two children were included in the application as members of the applicant’s family unit.
On 7 March 2022, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant satisfied cl 186.243(2) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because he had not provided evidence that he meets the English language requirement as provided for in the Meat Industry Labour Agreement between the Minister and JBS, signed on 29 March 2018 (CB 270-278) which provided in respect of a subclass 186 visa that:
Overseas Workers nominated under this Agreement, who are unable to meet Standard skilled visa program requirements, can be considered to have sufficient English to perform the nominated occupation if:
•they demonstrate an International English Language Testing System (IELTS) overall test score of at least 5.0 with no minimum test score; or
•they are a current Subclass visa holder who was not required to provide evidence of English language proficiency at the time of their Subclass 457 visa; and
•they provide evidence as prescribed in the Migration Regulations for meeting functional English.
The delegate found that the IELT test results for the applicant provided an overall score that was less than 5 and that as the applicant was not required to provide evidence of English language proficiency at the time he was granted a 457 visa on 6 October 2015 he was required to provide evidence of functional English as defined in reg 5.17 of the Regulations (CB 274). The delegate was not satisfied that the applicant had presented any evidence of functional English.
Accordingly, the delegate was not satisfied that the applicant met cl 186.243(2) of Schedule 2 of the Regulations. The delegate accordingly found that the secondary applicants did not satisfy the requirements of cl 186.311 of Schedule 2 of the Regulations as they were not members of the family unit of a person who holds a subclass 186 visa.
Application for review to the Administrative Appeals Tribunal
On 24 March 2022, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 279-287). The applicant appointed a legal practitioner to act as his representative (CB 285).
On 25 March 2022, the Tribunal acknowledged receipt of the application and advised the applicant that should he wish to provide material or written arguments he should do so as soon as possible (CB 298-301).
On 11 October 2023, the Tribunal invited the applicant to attend a hearing on 8 November 2023 to give evidence and present arguments relating to the issues arising in his case, stating that it was unable to make a favourable decision based on the information before it alone (CB 309-312).
On 7 November 2023, the applicant’s representative provided the Tribunal with a written submission and supporting documentation including as to the English language requirement (CB 357-430).
On 8 November 2023, the applicant attended the hearing (CB 437). The applicant was assisted by his representative and by an interpreter in the Portuguese and English languages.
After the hearing, on 13 November 2023, the applicant’s representative provided the Tribunal with further information regarding the applicant’s employment history with JBS in Brazil
(CB 431-436).
On 12 April 2024, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 488-510).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issues on review were whether the applicant satisfied
cl 186.243(2) of the Regulations or alternatively satisfies functional English or is otherwise not required to satisfy functional English by the payment of a second visa application contribution (“the VAC 2”) ([9]).
The Tribunal affirmed the decision of the delegate not to grant the applicant the visa on the basis that the applicant had not met cl 186.243 of the Regulations because he had not achieved functional English on the evidence presented ([42]-[43]; [46]).
The Tribunal (at [18]) identified that the applicant’s submission (as set out in his representative’s letter to the Tribunal dated 7 November 2023) challenged the delegate’s decision on two grounds:
(a)The Minister or the Tribunal had a discretion to ascertain whether the applicant had attained a level of English to perform the occupation required by the applicant’s position; and
(b)The Meat Industry Labour Agreement makes provision for the payment of a VAC 2 instead of having a test of the applicant attaining functional English.
The English language requirement
The Tribunal identified that the applicant was employed by JBS as a boner under the nominated position under the Meat Industry Labour Agreement between the Minister and JBS dated 29 March 2018 (“2018 MILA”) ([10]). A copy of Schedule 4 Item 2 English Language to the 2018 MILA was attached to the Tribunal’s Decision.
The Tribunal noted that the applicant had been granted 457 visas and that under the 2018 MILA the applicant had not been required to provide evidence of his English proficiency for those visas ([11]).
The Tribunal then noted that on 1 October 2019, JBS nominated the applicant for a 186 visa for the nominated position under the Labour Agreement stream and that at the same time the applicant applied for the 186 visa ([12]).
The Tribunal then listed the (42) documents the applicant had submitted to the Tribunal relevant to his meeting the English requirements ([17]).
The Tribunal noted that the applicant’s submission was that he did not need to provide proof of functional English because cl 186.243(2) of the Regulations stipulates a level of English that is “suitable to perform the occupation to which the position relates” ([19]). The Tribunal identified that the applicant’s supporting evidence that he had a level of English “suitable to perform the occupation to which the position relates” was the applicant’s 15 years of employment with JBS; his undertaking various English courses from which the applicant said it can be inferred that he possesses a level of English language proficiency suitable to perform the occupation of a meat boner and slicer; and, a support letter dated 25 June 2020 from the HR Manager of JBS confirming the applicant’s English language proficiency suitable to perform the occupation in the nominated position ([20]; [29]-[30]).
The Tribunal further noted (at [21]) that the applicant also relied upon cl 3.6.12 of the Department’s Procedural Instruction for “Permanent Employer Sponsored Entry – ENS and RSMS Visa Applications – Subclass 186/187” (“Procedural Instruction”). Clause 3.6.12, which the Tribunal set out in its Decision, states that:
Subclause 186.243(2) requires the Subclass 186 labour agreement stream applicant to have the English language skills that are suitable to perform the occupation in which the position relates. This means that the level of English that will be accepted is that which was approved under the Labour Agreement.
Where a labour agreement stream visa applicant is required to provide evidence of English proficiency for the grant of a visa, the applicant may use scores obtained from any of the approved English tests, specified by the Minister in a legislative instrument, as evidence of proficiency.
English language settings in template labour agreements will generally only reference IELTS scores to establish required minimum English thresholds, with the term “or equivalent” added to clarify that any approved English tests specified by the Minister in a legislative instrument is acceptable. For labour agreements that do not contain the term “or equivalent”, this should not be interpreted to mean that the visa applicant is limited to an IELTS test to demonstrate proficiency.
Where exemptions under the TRT stream or DE streams are in place that remove the requirement for an ENS visa applicant to demonstrate English proficiency, these exemptions will apply to labour agreement stream applicants, even if exemptions are not specified in the Labour Agreement.
In its consideration of the applicant’s claim with respect to the English language requirements, the Tribunal said that the labour agreement stream English requirements are embedded in
cl 186.243(2) of the Regulations which states that the applicant is to have the English language skills suitable to perform the occupation in which the position relates ([31]). The Tribunal said that the 2018 MILA established a ‘suitable language skills’ for applicants who wish to progress to a 186 visa and that the terms of suitable language skills were set out in Schedule 4 to the 2018 MILA ([33]). The Tribunal said that Schedule 4 (which it attached to its decision) expressly refers to those applicants – of whom it noted that applicant is included – who cannot meet the standard skilled visa program by providing a path for that applicant to have sufficient English to perform the nominated occupation which is:
(a)If the applicant can demonstrate an IELTS overall test score of 5.0 without reference to any minimum categories score. Note that the Procedural Instruction can refer to other equivalent recognised tests.
(b)Alternatively, for an applicant holding a 457 visa, who was not, and did not have evidence of English language proficiency at the time of their 457 visa, and provided evidence of meeting the Regulations for satisfying the requirements of functional English, can satisfy the English test requirements for the 186 visa.
The Tribunal said (at [35]) that it was for the Tribunal to determine what is functional English and whether the applicant has achieved a test result equivalent to functional English as defined in s 5(2) of the Act which provides the following definition:
(2) For the purposes of this Act, a person has functional English at a particular time if:
(a) the person passes a test that:
(i) is approved in writing by the Minister for the purposes of this subsection; and
(ii) is conducted by a person, or organisation, approved for the purposes of this subsection by the Minister by notice in the Gazette; or
(b) the person provides the Minister with prescribed evidence of the person’s English language proficiency.
The Tribunal then set out (at [36]) that reg 5.17(2) provides that for the purposes of s 5(2)(b) of the Act(dealing with whether a person has functional English), the evidence referred to in each of the following paragraphs is prescribed evidence of the English language proficiency of a person:
(a) evidence specified by the Minister in an instrument5 in writing for this paragraph;
(c) evidence that:
(i) the person holds an award (being a degree, a higher degree,
a diploma or a trade qualification) that required at least 2 years of
full-time study or training; and
(ii) all instruction (including instruction received in other courses for
which the person was allowed credit) for that award was conducted
in English;
(f) evidence that the person has been assessed as having functional English by the provider of a course that is an approved English course for the purposes of section 4 of the Immigration (Education) Act 1971;
(j) if:
(ii) evidence referred to in paragraph (a) cannot be provided by the
person; and
(iii) it is not reasonably practicable for the person to attend at a place
where, or time when, he or she could be subjected to a test
mentioned in paragraph (f);
evidence that the person has been determined by the Minister, on the basis of an interview with the person, to have functional English.
The Tribunal identified the legislative instrument referred to in reg 5.17(2)(a) as IMMI 15/004 commencing 1 January 2015.
The Tribunal then considered whether the applicant provided any of the prescribed evidence in reg 5.17 which demonstrated functional English. The Tribunal said there was no evidence of the applicant’s primary and secondary education being taught in English; no word [sic] that the applicant had completed at least 5 years of secondary education and [sic] institutions in which all instruction was conducted in English and no evidence of the applicant achieving and [sic] IELTS test where the average band score of at least 4.5 based on the 4 test components, including an English testing organisation equivalent to IELTS where the test score is at least the standard of the IELTS test ([38]). The Tribunal had earlier noted in its Decision that the IELTS test result for the applicant dated 11 June 2020 was an overall band score of 1.5 ([16]). The Tribunal also found that there was no evidence of the applicant completing in Australia at least 1 year of full time or equivalent part time study towards a degree, higher degree, diploma or associate diploma at an institution where all instruction was conducted in English ([39]).
Accordingly, the Tribunal concluded it was not satisfied that the applicant had an English level equivalent to functional English ([40]).
The VAC claim
The applicant’s second claim was that the law or 2018 MILA allowed a payment of VAC 2 in lieu of providing evidence that the applicant satisfied the functional English requirement ([22]). The applicant relied upon Item 1114B of Schedule 1 of the Regulations and cl 3.11.1 of the Procedural Instruction which provides adult primary applicants who are otherwise exempted from the English language criterion are required to pay the second instalment of the VAC if they are assessed as not having functional English.
The Tribunal referred to the applicant’s evidence of a letter from JBS advising that it had the opportunity of having other primary applicants pay a VAC 2 who could not evidence functional English ([26]-[27]).
The Tribunal rejected this claim. The Tribunal said that cl 3.11.1 was not applicable to the applicant because the applicant was required to achieve at the least a functional level of English or its equivalent under the 2018 MILA ([41]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 13 May 2024. The applicant also filed an affidavit on 13 May 2024. The affidavit annexes a copy of the Tribunal’s decision.
Procedural orders were made permitting the applicants to file and serve an amended application with proper particulars and any additional evidence on which he seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The applicant and the second and third applicants appeared in person unrepresented. The applicant had the assistance of an interpreter in the Portuguese and English languages. Despite being ordered to do so, the applicant did not file any written submissions. The applicant was given the opportunity to make oral submissions in support of the application for judicial review and in reply to the first respondent’s submissions. The second applicant (the applicant’s wife) assisted the applicant and also made a submission (assisted by the interpreter) to the Court.
The material before the Court was the application, the applicant’s affidavit, the first respondent’s response, the first respondent’s written submission and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that he had these documents in Court with him. The Court Book was made an exhibit in the proceedings.
CONSIDERATION
For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicant should or should not be granted the visa.
Despite the procedural order permitting them to do so, the applicants did not file an amended application. The grounds of review set out in the application are (without alteration):
Ground One:
I Manoel Calixto Alves Filho believe the Administrative Appeals Tribunal made mistake when processing my application for the subclass 186 visa, I fell under the old MILA which stripulates previous 457 holders do not have to provide functional English I meet this criteria, it is my belief that by law my application should have been processed under the old MILA as it was lodged in timely manner when the old MILA was relevant.
With all due respect to the Administrative Appeals Tribunal I Manoel Calixto Alves Filho believe a jurisdictional error was made and my case warrants the exercise of the ministers powers s 351 of the Act.
Ground one: application of the “old” Meat Industry Labour Agreement
In ground one, the applicant appears to contend that the Tribunal applied the incorrect MILA when “processing his application for the subclass 186 visa”. The applicant contends that he “fell under the old MILA”. The application does not particularise what is meant by the “old MILA”. The applicant did not file any affidavit or written submissions in which this might have been explained.
The Court asked the applicant to identify what MILA he was referring to as the “old MILA”. The Court referred the applicant to the fact that the Tribunal had relied upon and applied the MILA between the Minister and JBS signed on 29 March 2018. The applicant confirmed that this was the correct MILA.
The Court agrees that the relevant MILA was that identified by the delegate in their reasons for decision and by the Tribunal as the MILA between Minister and JBS dated 29 March 2018. This is the agreement that was in force at the time the applicant applied for the visa. A copy of the 2018 MILA is not in the Court Book. The Court is nevertheless prepared to accept that the relevant section of that MILA dealing with the English language requirement for applicants for a 186 visa is Schedule 4 Item 2. Schedule 4 Item 2 is Attachment B to the Tribunal’s Decision (CB 497).
The applicant contends that the 2018 MILA (which he describes in the application as the “old MILA”) stipulates that “previous 457 holders do not have to provide functional English and that he meets this criterion”. The Court understands the applicant to be confirming that he does not have functional English as defined by reg 5.17 for the purposes of s 5(2) of the Act. The Court notes that the applicant did not contend otherwise in the submissions made to the Tribunal.
The applicant’s contention misunderstands the terms of Item 2 of Schedule 4 of the MILA which provides:
Item 2 English Language provides:
Schedule 4 Concessions relating to visa criteria covered by this Agreement
Item 2 English Language
Subclass 457 and TSS visas
Overseas Workers nominated under this Agreement, who are unable to meet Standard skilled Visa programme requirements, can be considered to have sufficient English to perform the nominated occupation if:
•they demonstrate an International English Language Testing System (IELTS) overall to score of at least 5.0 with no minimum test score;
or
•was not required to provide evidence of English language proficiency at the time of the grant of their most recent subclass 457 visa under previous meet industry labour agreements.
Subclass 186 visa
Overseas Workers nominated under this Agreement, who are unable to meet Standard skilled visa program requirements, can be considered to have sufficient English to perform the nominated occupation if:
•they demonstrate an International English Language Testing System (IELTS) overall test score of at least 5.0 with no minimum test score;
or
•are a current Subclass 457 visa holder who was not required to provide evidence of English language proficiency at the time of grant of their Subclass 457 visa; and
•provides evidence as prescribed in the Migration Regulations for meeting functional English.
The Tribunal accepted that the applicant had not been required to provide evidence of his English language proficiency at the time of the grant of his most recent subclass 457 visa. The applicant was, of course, applying for a subclass 186 visa. In that regard, Item 2 required a current subclass 457 visa holder who was not required to provide evidence of English language proficiency at the time of the grant of their Subclass 457 visa to provide evidence of functional English as prescribed in the Regulations in circumstances where the applicant did not demonstrate an IELTS overall test score of at least 5.0 with no minimum test score.
Relevantly, cl 186.243(2) of Schedule of the Regulations provides that the applicant is required to have English language skills that are “suitable to perform the occupation to which the position relates”. As identified by the Tribunal, the Procedural Instruction
provides at cl 3.6.12 that the English language skills that are suitable to perform the position for the purposes of
cl 186.243(2) is the level of English approved under the Labour Agreement.
The Tribunal was correct in deciding that for the purposes of cl 186.243(2), Item 2 of Schedule 4 of the 2018 MILA provides the circumstances in which an overseas worker nominated under the agreement, who is unable to meet the standard skilled visa program requirements, can be considered to have sufficient English to perform the nominated occupation. The Tribunal correctly identified that for a current subclass 457 visa holder who was not required to provide evidence of English language proficiency at the time of grant of their most recent subclass 457 visa the intention of Schedule 4 of the 2018 MILA was to ensure that 457 visa holders had the opportunity to satisfy functional English ([37]-[39]).
The Court agrees with the first respondent’s submission that the visa requirements in
cl 186.243(2) of the Regulations, read consistently with the 2018 MILA and the Act and the Regulations, create fixed and inflexible mandatory visa criterion which has no arguable ambiguity (FRS [12] referring to Thlork v Minister for Immigration & Border Protection [2019] FCA 333 at [12] per Bromwich J; Kumar v Minister for Immigration & Border Protection [2018] FCA 140 at [24] per Robertson J). The applicant was required to provide evidence of functional English. The Tribunal was correct, for the reasons given in its Decision (at [37]), that the applicant did not have functional English as prescribed in reg 5.17 of the Regulations. As noted, the applicant did not contend that he had functional English.Accordingly, the Court finds that there was no error in the Tribunal’s reasoning as to the application of the 2018 MILA and its finding that the applicant did not have functional English and so did not satisfy the requirement in cl 186.243(2) of the Regulations.
No jurisdictional error is established on ground one.
Ground 2: payment of VAC 2 in lieu of functional English
Although not raised by the applicant in the application, the applicant raised the payment of VAC 2 in his oral submissions. As noted above, this was the second claim that the applicant had made in the hearing before the Tribunal.
The applicant explained to the Court that he had been told by JBS that he would not be required to demonstrate that he had functional English because he could instead make a second payment of $10.000.00. The applicant said that he relied upon this advice when making the application for the visa. The applicant also said that other colleagues who had applied for a visa at about the same time were granted visas even though they did not have functional English and that they had paid the VAC 2. The applicant expressed concern about this seeming inconsistency in treatment of visa applications.
The Court considered whether the Tribunal fell into jurisdictional error in its consideration of the applicant’s claim that the 2018 MILA made provision for the payment of a VAC 2 in lieu of being required to have functional English. As noted, the Tribunal considered this claim and rejected it on the basis that the applicant was required to achieve functional English ([41]).
Item 1114B of Schedule 1 of the Regulations provides for the payment of a visa application charge by an applicant for an Employer Nomination (Permanent) (Class EN) visa. There is provision for the payment of a first instalment at the time the visa application is made and a second instalment payable before the grant of the visa. The second instalment
(of $9,800.00.00) is payable by an applicant who is at least 18 at the time of the application; and who is assessed as not having functional English; and who satisfies the primary criteria for the grant of a Subclass 186 (Employer Nomination Scheme) visa.Clause 3.11.1 of the Procedural Instruction – which the applicants had relied upon at the Tribunal hearing – provides:
Paragraphs 1114B(2)(b)/1114C(2)(b) of Schedule 1 to the Regulations require that prior to visa grant, the following persons must be formally assessed as to whether they have functional English:
•secondary applicants who were 18 or over at the time of application;
•adult primary applicants who are otherwise exempted from the English language criterion are required to pay the second instalment of the VAC if they are assessed as not having functional English.
If these applicants do not have functional English, they must pay the second instalment of the VAC.
For functional English, refer to:•regulation 5.17 and
•Div5.3/reg 5.17 - Prescribed evidence of English language proficiency.
Neither Item 1114B nor cl 3.11.1 of the Procedural Instruction provide for the payment of a second instalment in lieu of satisfying the primary criteria for grant of a Subclass 186 (Employer Nomination Scheme) visa nor provide that the applicant is exempt from satisfying the primary criteria. As already set out, the primary criteria for the grant of a subclass 186 visa includes that the applicant has English language skills that are suitable to perform the occupation to which the position relates as set out cl 186.243(2) of the Regulations and Schedule 4 to the 2018 MILA which expressly provides for an applicant for a subclass 186 visa to provide evidence as prescribed in the Regulations for meeting functional English.
No jurisdictional error is established on ground two.
Ground three: Ministerial intervention pursuant to s 351 of the Act
The applicant contends in the application that pursuant to s 351 of the Act, the Minister should exercise the Minister’s discretion to substitute a more favourable decision.
Section 351 of the Act provides that if the Minister thinks it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under s 349 of the Act another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
The Court agrees with the first respondent’s submission (FRS at [24]-[25]) that this ground of review amounts to a request to the Tribunal (and now the Court) for Ministerial intervention. There was no statutory obligation on the Tribunal to refer the matter to the Minister for intervention. Accordingly, this ground of review could not amount to a jurisdictional error. The request had no bearing on the Tribunal’s decision to affirm the delegate’s decision.
No jurisdictional error is established on ground three.
In so finding, the Court is of course not expressing any view as to whether the matter is one in which the Minister should not intervene.
CONCLUSION
Accordingly, for the reasons given above, no jurisdictional error is established, and the application is dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 21 February 2025
SCHEDULE OF PARTIES
BRG 276 of 2024 Applicants
Fourth Applicant:
PAULO VICTOR DE SOUZA CALIXTO
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