Goyal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 361
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Goyal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 361
File number(s): SYG 2450 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 14 March 2025 Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal (the Tribunal) – employer nomination visa – whether the Tribunal misdirected itself when it concluded as a matter of law that the applicant’s employer was not the nominated sponsor – whether the Tribunal erred when it had regard to the employment arrangements at the time of hearing – whether the Tribunal improperly referred to matters that were the subject of a certificate issued under s 376 of the Migration Act 1958 (Cth) – application dismissed. Legislation: Corporations Act 2001 (Cth) s 119
Migration Act 1958 (Cth) s 376
Migration Regulations 1994 (Cth) cls 5.19, 186.223
Cases cited: Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Schroeder and Australian Securities and Investments Commission [2020] AATA 2453
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 5 March 2025 Place: Sydney Solicitor for the Applicant: Mr A Sivaguru, Paramatta Lawyers Solicitor for the First Respondent: Ms J Schultz, Mills Oakley Lawyers Second Respondent: Submitting appearance save as to costs ORDERS
SYG 2450 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HANISH GOYAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
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 MCCABE:
Mr Hanish Goyal applied for an Employer Nomination (subclass 186) visa (the visa) in 2015. His employer at the time was a company called A & J Enterprise Holdings Pty Ltd (A&J). A&J nominated Mr Goyal for the visa on the basis he would work in the business as a ‘customer service manager’. A&J’s nomination was approved on 25 May 2015, but that did not mean Mr Goyal’s application for a visa was automatically approved. His application ran into trouble after inspectors from the Department of Immigration and Border Protection (the department) visited his workplace in 2017. The inspectors questioned whether Mr Goyal’s role in the sponsor’s business was that of a ‘customer service manager’. That was an issue because cl 186.223(1) of sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) required that the position in respect of which the visa was sought be the same position referred to in the approved nomination by the sponsor.
In a decision made on 18 October 2017, a delegate (the delegate) of the first respondent (the minister) concluded the role being undertaken did not match the role referred to in the nomination that had already been approved. The delegate rejected Mr Goyal’s application for a visa on that basis.
Mr Goyal promptly sought review of the delegate’s decision in the Administrative Appeals Tribunal (the Tribunal) while he continued working in the same business, undertaking the same role as before. In July 2019, while the matter was awaiting a hearing, the entity conducting the business in which Mr Goyal was employed was replaced by another company. The new proprietor of the business (and employer of Mr Goyal) was an entity called Huns Turramurra Pty Ltd as The Trustee for The Huns Turramurra Trust (Huns). A&J and Huns had a common director.
The Tribunal held a hearing in June 2020. It subsequently affirmed the delegate’s decision but the Tribunal’s reasons for doing so were different to those of the delegate. The Tribunal did not appear to share the delegate’s concern over whether Mr Goyal was performing as a customer service manager as provided for in the approved nomination. The Tribunal’s decision focused on what it took to be a different problem arising out of the requirements in cl 186.223 of the Regulations: namely, whether Mr Goyal was still employed by the company referred to in the approved nomination. The Tribunal said the change in the identity of Mr Goyal’s employer in 2019 was fatal to the application for a visa because Huns, the new employer, did not have a nomination approval in place in respect of Mr Goyal.
Mr Goyal says the Tribunal’s decision is affected by material jurisdictional error. He has asked the Court for relief.
Mr Sivaguru, a solicitor, represented Mr Goyal at the hearing before me. Mr Sivaguru sought leave to file an amended application which set out 12 grounds of review. Leave was given to rely on the amended application but it became apparent during submissions there were effectively three grounds of review. They can be summarised as follows:
·First: the Tribunal misdirected itself when it concluded as a matter of law that Huns was not the nominated sponsor;
·Second: in any event, the Tribunal erred when it had regard to the employment arrangements in place at the time of the hearing and should have decided the matter with reference to the arrangements in place prior to July 2019; and
·Third: the Tribunal denied Mr Goyal procedural fairness when it had regard to matters which were the subject of a certificate issued under s 376 of the Migration Act 1958 (Cth) (the Act).
I am not satisfied Mr Goyal has made out any of the grounds of review. There is no material jurisdictional error apparent in the Tribunal’s decision. The application to the Court must therefore be dismissed. I explain my reasons below.
BACKGROUND
Mr Goyal is a citizen of India. He was lawfully present in Australia when he applied for the visa on 27 May 2015. The application related to a position with A&J. A&J operated several 7‑Eleven franchises. Mr Goyal had been engaged to work in that business.
A&J’s nomination of the position had been approved on 25 May 2015. A copy of the approval of A&J’s nomination is reproduced in exhibit one (the court book) at pp 12ff. The approved position was identified as ‘customer service manager’. The delegate noted in their decision (reproduced in the court book at pp 161ff) that the Australian and New Zealand Classification of Occupations defined a ‘customer service manager’ as someone who “plans, administers and reviews customer services and after‑sales services, and maintains sound customer relations”: court book at p 167.
Officers of the department conducted a site visit on 24 May 2017. The report from the visit concluded Mr Goyal’s role was “more aligned to a shop assistant’s rather than as Customer Service Manager”: court book at p 167.
Mr Goyal was subsequently invited to comment on these concerns. After considering submissions and the supporting material, the delegate concluded Mr Goyal did not meet the requirements of cl 186.223 of the Regulations. The delegate was not satisfied Mr Goyal was undertaking the role that was the subject of the approved nomination. The delegate’s decision and reasons dated 18 October 2017 are reproduced in the court book at pp 161ff.
THE APPLICATION FOR REVIEW
On 6 November 2017 Mr Goyal applied to the Tribunal for review of the delegate’s decision. He was initially assisted by a migration agent but appointed his current lawyers to represent him in the Tribunal in January 2018.
It took some time for the matter to come on for a hearing in the Tribunal. Mr Goyal was not responsible for the delay. On 5 June 2020 the Tribunal issued an invitation for a hearing listed for 25 June 2020. The invitation said the Tribunal was unable to make a favourable decision on the information that was already before it. The invitation asked Mr Goyal to provide any additional information in advance of the hearing. The invitation explained the hearing would be held by telephone because of restrictions associated with the COVID-19 pandemic.
Mr Goyal’s lawyer responded to the hearing invitation by providing a collection of payslips dating from 7 July 2019. Those payslips (reproduced in the court book at pp 203ff) disclosed Mr Goyal was employed by Huns. The lawyers also provided a submission, a statutory declaration, and two letters from Mr Singh.
The first letter (reproduced in the court book at p 262) dated 5 July 2019 is addressed to Mr Goyal and signed by Mr Singh in his capacity as a director of A&J. The letter advised Mr Goyal that his employment with A&J was “transferred” to Huns as of 28 June 2019. The letter says:
Your employment will be on the same terms and conditions set out in your current contract of employment with the old entity, except that references to the old entity will be references to the new entity [i.e., Huns]. This means that your role, remuneration and work location will remain unchanged. [Emphasis in original]
The second letter (reproduced in the court book at p 263) dated 23 June 2020 is headed “To whom it may concern”. It is signed by Mr Singh. I infer Mr Singh signed the letter in his capacity as a director of Huns, albeit the letter does not make that clear. The letter (such as it is) confirms Mr Goyal was employed by Huns as a ‘customer service manager’.
There was a discussion at the Tribunal hearing about the significance of the change in employment arrangements. The Tribunal subsequently wrote to Mr Goyal on 14 July 2020 about this issue. The Tribunal invited him to comment and provide additional information pursuant to s 359A of the Act. The submission from Mr Goyal’s lawyer was provided on 27 July 2020. The submission (reproduced in the court book at pp 273ff) annexed ASIC searches of A&J and Huns. The search extracts showed Mr Singh was a director of both companies. I note the search extract relating to Huns confirms the company was registered on 13 December 2018.
THE TRIBUNAL’S DECISION ON REVIEW
The Tribunal decided to affirm the delegate’s decision to refuse the visa. The Tribunal’s decision is dated 1 October 2020. The decision and reasons are reproduced in the court book at pp 299ff.
After referring to cl 186.223 of the Regulations and the reasons the delegate gave for refusing the visa, the Tribunal explained (at [11]):
Upon review the Tribunal has concerns as to whether the applicant satisfies cl. 196.233(1)(a) [sic] for a different reason. That is whether the position that the applicant is seeking to rely upon for the purposes of the visa grant is the position nominated in the application for approval by his nominator, A & J Enterprise Holdings Pty Ltd. Further the issue has arisen as to whether the position is still available to the applicant within the nominating employer.
The Tribunal noted (at [13]) Mr Goyal was no longer acting as a customer service manager for some of the 7‑Eleven stores after the business was transferred to Huns. (Whereas A&J had operated eight or nine stores, Huns operated two.) The Tribunal nonetheless appeared to accept (at [23]) Mr Goyal worked in a role identified as ‘customer service manager’ at all material times. The Tribunal also acknowledged (a) Mr Goyal continued to be paid the same salary; and (b) he was based in the same location. The real issue on review was the impact of the change in corporate and employment arrangements.
The Tribunal noted (at [14]) it had asked Mr Goyal to comment on the change in ownership and employment arrangements because:
… one of the requirements for the grant of an employer nominated visa is that the position with the nominated employer for the purposes of the application is still available to the applicant. It is also relevant because the position that the applicant now seeks to rely upon with The Huns Turramurra Pty Ltd (ACN 630 580 264) as Trustee for The Huns Turramurra Trust (ABN 87 962 513 615) is not that which to which the visa application relates, being the position nominated in an application for approval by A & J Enterprise Holdings Pty Ltd (ACN 097 023 919) (ABN 66 097 023 919).
Mr Goyal’s representative had argued before the Tribunal that the transition from A&J to Huns was indicative of nothing more than a name change. It was said Mr Goyal was still employed by the same business which was conducted by entities associated with the same director. The Tribunal rejected this submission. The Tribunal concluded (at [22]) the evidence pointed to Mr Goyal ceasing employment with A&J when its business was transferred to Huns. After referring to the company searches in evidence, the Tribunal found A&J and Huns had a common director, but they were separate legal entities. The Tribunal acknowledged there were provisions in employment legislation which might create continuity in entitlements where an employee is transferred from one employer to another in certain circumstances, but those provisions did not assist in the interpretation of the provisions under consideration here. The Tribunal found (at [23]):
… on the material before it the Tribunal is not satisfied that the applicant continues to be employed by the nominator. It finds that the nominating company A & J Enterprise Holdings Pty (ACN 023 919) (ABN 66 097 023 919), is a different legal entity and different business to The Huns Turramurra Pty Ltd (ACN 630 580 264) as Trustee for The Huns Turramurra Trust (ABN 87 962 513 615). The position that the applicant is now relying on for the purposes of the visa application is with The Huns Turramurra Pty Ltd (ACN 630 580 264) as Trustee for The Huns Turramurra Trust (ABN 87 962 513 615). This is not the position with the approved nominator. This is not the position to which the application relates and was identified in an application for approval by A & J Enterprise Holdings Pty Ltd that met the requirements of cl. 5.19 of Schedule 2 to the Regulations when approved on 25 May 2015.
After finding Mr Goyal could not satisfy cl 186.223(1)(a) of the Regulations by relying on his role with Huns, the Tribunal considered whether the applicant could rely on A&J given that nomination remained extant. The Tribunal concluded (at [26]):
… having found that the applicant ceased employment with A & J Enterprise Holdings Pty Ltd on or about 5 July 2019, the Tribunal is not satisfied that there is a position within this employer for the applicant. The applicant has not demonstrated that he continues to be employed by A & J Enterprise Holdings Pty Ltd, or that it is the current business operator of the 7-Eleven Turramurra where he currently performs the functions of a Customer Service Manager. The evidence does not demonstrate, and the applicant has not established in evidence or submissions, that A & J Enterprise Holdings Pty Ltd intends to again employ the applicant or have a position for the applicant consistent with the nomination approval. …
It follows the Tribunal decided to affirm the delegate’s decision for different reasons.
THE GROUNDS OF REVIEW
I have already pointed out Mr Goyal’s representative filed an amended application for review that identified 12 grounds. The amended application was filed outside the timetable set down by a registrar earlier in these proceedings. I gave leave notwithstanding the delay given the minister was not taken by surprise. I note the minister’s submissions were prepared having regard to the proposed grounds.
During the course of submissions, it became apparent that there were only three live grounds of appeal, and that they were framed somewhat differently to the way they were framed in the applicant’s written material. I asked Mr Sivaguru whether the applicant was content for me to focus on those three grounds (articulated at [6] of these reasons). He accepted that was appropriate. I will deal with each of those grounds in turn.
Did the Tribunal misdirect itself when it concluded as a matter of law that Huns was not the nominated sponsor?
In his written submissions and in the amended application, Mr Sivaguru appeared to cling to an argument that A&J and Huns were the same entity which had merely changed its name. There appeared to be an alternative argument to the effect that, even if the two entities were technically separate, they nonetheless should be treated as if they were one entity because they had a common director and they continued to run the same business. Both of those arguments are untenable.
The Tribunal referred to ASIC searches which demonstrated Huns had a different ACN to A&J: at [20]. The searches disclose Huns was only registered in December 2018 (well after the nomination by A&J was approved). Section 119 of the Corporations Act 2001 (Cth) provides a company comes into existence on and from the day it was registered. The Tribunal concluded that A&J and Huns were therefore separate entities. There is nothing unreasonable about that finding. Indeed, it was the only conclusion open given the evidence and the law.
The Tribunal did not misdirect itself or otherwise misunderstand the implications of that finding. The employer at the time of the nomination was A&J, and the employer after July 2019 was Huns. There is no basis in law for treating those entities as the same for present purposes, and there was no evidence for the (unargued) proposition that Huns and A&J were in an agency relationship that might have satisfied the requirements.
A&J was (and remains) the only approved nominator. While Huns took over Mr Goyal’s employment in 2019, it was not (and is not) an approved nominator, and there is no evidence Huns has nominated Mr Goyal for the position to which he was appointed. It follows Mr Goyal has been working in a different (albeit similar) position with a different employer since 2019. It is not the same position referred to in the nomination. In those circumstances, the Tribunal reasonably concluded the arrangements did not satisfy the requirements in cl 186.223(1)(a) of the Regulations.
To the extent there was any doubt about that conclusion, given the nomination of A&J remained in place, the Tribunal found it was satisfied on the evidence that the nominated position was no longer available with A&J. The Tribunal noted there was no evidence A&J had offered to employ Mr Goyal after his employment with that company ceased in 2019. That finding (discussed at [26]) was open to the Tribunal and provides a reasonable basis for the Tribunal’s conclusion that Mr Goyal was unable to satisfy the requirement in cl 186.223(4) of the Regulations that the nominated position remain available to the applicant.
Mr Sivaguru’s submissions focused on the continuity of the applicant’s employment with the business. Those submissions miss the point of the Tribunal’s decision, which reflected the break in continuity of the employment relationship when the approved nominator was replaced by another company. The Tribunal’s approach is correct and reflects the requirements of cl 186.223. This (reformulated) ground must fail.
Did the Tribunal fall into error when it had regard to the employment arrangements at the time of the hearing?
Mr Sivaguru submitted the Tribunal’s decision turned on its findings about the employment arrangements that existed after July 2019 – whereas the Tribunal did not appear to share the delegate’s concerns about the state of affairs existing at the time of the delegate’s decision. Mr Sivaguru pointed out the application for review was filed in the Tribunal in 2017. He argued that if the Tribunal had held a hearing prior to the change in employment arrangements in 2019, its reasoning suggests Mr Goyal would have succeeded in his quest for a visa. Mr Sivaguru said the delay in the Tribunal prejudiced Mr Goyal.
The Tribunal did not expressly say in [23] that it would have set aside the delegate’s decision but for the change in employment arrangements in 2019. I will assume for now that the outcome before the Tribunal might have been different if the matter had been heard prior to the change in employment arrangements in July 2019. But that does not assist the applicant, as I shall explain.
Mr Sivaguru appears to be arguing the Tribunal’s decision should have been made with reference to the facts and circumstances as they existed at the time of the delegate’s decision, or at the time when the review was commenced. That is wrong.
The scope of the Tribunal’s review was discussed by the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 (Shi); see also Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16 and Schroeder and Australian Securities and Investments Commission [2020] AATA 2453. In Shi, the professional body which regulates migration agents made a reviewable decision to cancel the registration of an agent as part of a disciplinary process. The agent asked the Tribunal to review the decision. The Tribunal set aside the cancellation decision after referring to evidence of the applicant’s conduct that post-dated the primary decision. On appeal, the regulator argued the Tribunal should have confined itself to evidence of the applicant’s conduct as at the date of the primary decision.
The High Court explained the scope of the review in each case was determined by reference to the legislative scheme. Hayne and Heydon JJ observed (at [93]):
… attention must be directed to provisions of both the AAT Act and the Migration Act. The task of the Tribunal in reviewing the cancellation decision was to be identified by considering the intersecting operation of ss 25 and 43 of the AAT Act, and ss 303 and 306 of the Migration Act.
In Shi, the relevant provisions made clear that the Tribunal’s decision on review was intended to be made having regard to the evidence available at the time of the hearing. Kirby J pointed out (at [50]) that looking at the most up-to-date material made sense in a regulatory case given the object of the legislation in question was focused on consumer protection. Hayne and Heydon JJ pointed out (at [97]) that requiring the review to be conducted having regard to the facts at the time of the primary decision:
… would treat the Tribunal’s task as confined to the correction of demonstrated error in administrative decision-making in a manner analogous to a form of strict appeal … in judicial proceedings. But that is not the Tribunal’s task.
Hayne and Heydon JJ pointed out (at [98]-[99]) the Tribunal’s review was always concerned with reaching the correct (or, where appropriate, preferable) decision on review having regard to the material before the Tribunal. Once that was accepted:
[99]… it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision‑maker to act; there is nothing in the AAT Act which would provide such a limitation.
The High Court in Shi found there was nothing in the provisions of the Act that dealt with the review of disciplinary decisions that suggested the Tribunal’s review was temporally confined. What of the provisions in this case?
Mr Sivaguru was unable to refer me to any statutory language that suggested the Tribunal’s review was temporally confined. Ms Schultz, who appeared for the minister, suggested the language of the legislative provision comprehended the Tribunal being able to have regard to the facts as they evolved at the time of the hearing. I agree. There is nothing in the language of cl 186.223 of the Regulations or the relevant provisions of the Act which incorporate the sort of limitation discussed in Shi at [99]. It follows I am satisfied it was open to the Tribunal to have regard to the arrangements that were in place post‑July 2019. Indeed, the Tribunal was required to do so if it was to discharge its statutory function of making the correct decision on the review.
That finding has unfortunate consequences for Mr Goyal. His nomination was effectively overtaken by events outside of his control. That outcome might have been avoided if the Tribunal was able to complete its review more quickly (i.e., prior to the change in arrangements in July 2019). I agree the delay in dealing with the case was regrettable. It was not the Tribunal’s fault: the Tribunal was struggling to deal with a surge in applications at the time, and backlogs were an issue. But whatever the explanation for the delay, the Tribunal was bound to deal with the question before it on the basis of the evidence as it stood at the time of the review.
Mr Sivaguru suggested there must be some relief available, but the Tribunal was obliged to proceed as it did. The Tribunal did not have the discretionary power to reach a different decision in light of the hardship that Mr Goyal may have experienced.
This reformulated ground of review must fail.
Did the Tribunal deny Mr Goyal procedural fairness when it had regard to matters that were the subject of a certificate issued under s 376 of the Act?
That brings me to the last of the three grounds that were reformulated during the course of the hearing. The ground relates to the Tribunal’s reference to departmental records that were the subject of a certificate issued pursuant to s 376 of the Act. As I understand the argument, Mr Sivaguru says the Tribunal acted unfairly when it had regard to the records covered by the certificate without properly disclosing their contents and inviting the applicant to comment.
The Tribunal addressed the documents in question in the penultimate paragraph of its reasons (at [30]). The documents related to the workplace site visit that was conducted by the departmental officers in May 2017. The reasons make clear the Tribunal:
(a)disclosed the existence of the certificate at the hearing; and
(b)explained it was satisfied the certificate was invalid.
The Tribunal concluded:
… Any information relating to this site visit has not been material to the issues considered by the Tribunal, as discussed above, on review. The Tribunal accepts the claims by the applicant that the relevant site visit was very brief and the substance of the discussions had as related by him. It draws no adverse inference from this material.
In other words, the Tribunal did not think the documents were relevant because it made its decision on a different basis. If it did not have regard to the documents and the documents did not prejudice or assist the applicant, it is difficult to see how there can be said to be any jurisdictional error. If there was a jurisdictional error, there was nothing in Mr Sivaguru’s submission pointing to that error being material in the sense explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.
I am satisfied this reformulated ground of review must also fail.
CONCLUSION
The application for judicial review is dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 14 March 2025
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