K&S Food Services Pty Ltd v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1700
•16 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
K&S Food Services Pty Ltd v Minister for Immigration and Citizenship [2025] FedCFamC2G 1700
File number(s): SYG 1933 of 2021
SYG 1934 of 2021Judgment of: JUDGE ZIPSER Date of judgment: 16 October 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to approve a nomination of position - requirement for training specified in statutory instrument – statutory instrument specified ‘recent expenditure’ in provision of training – whether ‘recent expenditure’ refers to expenditure in months prior to lodging nomination or in months prior to decision
STATUTORY CONSTRUCTION – meaning of term ‘recent expenditure’ in statutory instrument - role of departmental policy in interpreting term in statutory instrument – role of explanatory statement in interpreting term in statutory instrument
MIGRATION – judicial review – request by applicant to Tribunal for adjournment of review or additional time to provide further evidence – Tribunal refused request – whether Tribunal’s refusal to exercise procedural discretionary power to adjourn review was legally unreasonable – failure of Tribunal to consider that departmental policy was misleading and applicant relied on misleading departmental policy
Legislation: Migration Act 1958 (Cth) ss 360, 363, 476
Migration Regulations 1994 (Cth) reg 5.19, cl 186.233 of Sch 3
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439
AXG18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 865,
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; 218 CLR 1
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503
Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Mora v Minister for Immigration and Border Protection [2018] FCA 1819
Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601
Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; 253 FCR 267
Division: Division 2 General Federal Law Number of paragraphs: 100 Date of hearing: 2 June 2025 Place: Parramatta In SYG 1933 of 2021
Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: Agape Henry Crux Lawyers Counsel for the Respondents: Ms N Maddocks Solicitor for the Respondents: Minter Ellison Lawyers In SYG 1934 of 2021 Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: Agape Henry Crux Lawyers Counsel for the Respondents: Ms N Maddocks Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
SYG 1933 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: K&S FOOD SERVICES PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
16 OCTOBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The decision of the second respondent dated 16 September 2021 is quashed.
3.A writ of mandamus issue, remitting the second respondent’s decision to the Administrative Review Tribunal in accordance with rr 11 and 12 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), requiring that it review the decision of the delegate of the first respondent dated 25 July 2018 according to law.
4.The parties have liberty to apply within 7 days if they consider the wording of orders 2 or 3 requires amendment.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
ORDERS
SYG 1934 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHIA-MING HUANG
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
16 OCTOBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The decision of the second respondent dated 1 October 2021 is quashed.
3.A writ of mandamus issue, remitting the second respondent’s decision to the Administrative Review Tribunal in accordance with rr 11 and 12 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), requiring that it review the decision of the delegate of the first respondent dated 27 August 2018 according to law.
4.The parties have liberty to apply within 7 days if they consider the wording of orders 2 or 3 requires amendment.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).]
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
Before the Court there are two applications for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of decisions of the Administrative Appeals Tribunal (Tribunal). One application, lodged by K & S Food Services Pty Ltd (Employer) (Employer Proceeding), sought review of a decision of the Tribunal dated 16 September 2021 which affirmed a decision of a delegate of the first respondent who rejected the Employer’s application for approval of the nomination of a position for a subclass 186 Employer Nomination visa. The other application, lodged by Chia-Ming Huang (Visa Applicant) (Visa Applicant Proceeding), sought review of a decision of the Tribunal dated 1 October 2021 which affirmed a decision of a delegate of the first respondent who refused to grant the Visa Applicant and members of his family unit Employer Nomination (Permanent) (Class EN) subclass 186 visas.
For the reasons that follow, I consider the decision of the Tribunal dated 16 September 2021 is affected by jurisdictional error. It follows that the applicants succeed in both applications.
LEGISLATION
Legislation relevant to visa for which Visa Applicant applied
Clause 186.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) relevantly provided as a criterion for a subclass 186 visa at the time of the Tribunal’s decisions:
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in a Direct Entry stream; and
(iii) seeks to meet the requirements of subregulation 5.19(10); and
(b) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
Legislation and policy relevant to approval of nominated positions
The version of reg 5.19 of the Regulations attached to the Tribunal’s decision dated 16 September 2021, and applied by the Tribunal, was:
(1) A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2) The application must:
(a) be made in accordance with approved form 1395 (Internet); and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b) be accompanied by the fee mentioned in regulation 5.37.
(3) …
(4) The Minister must, in writing, approve a nomination if:
(a) the application for approval:
(i) is made in accordance with subregulation (2); and
(ii) identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control; and
(b) the nominator:
(i) is actively and lawfully operating a business in Australia; and
(ii) directly operates the business; and
(c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d) both of the following apply:
(i) the employee will be employed on a full‑time basis in the position for at least 2 years;
(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f) either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h) either:
(i) all of the following apply:
(AA) there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(A) the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub‑subparagraph;
(AAA) the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B) either:
(I) the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub‑sub‑subparagraph; or
(II) the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub‑sub‑subparagraph (I); or
(ii) all of the following apply:
(A) the position is located in regional Australia; …
(4A) …
(5) The Minister must refuse a nomination if neither of subregulations (3) and (4) applies.
By 16 September 2021, the version of reg 5.19 in force was different to that applied by the Tribunal. However, by virtue of transitional provisions usefully explained in the first respondent’s written submission at [28], the Tribunal correctly referred to the applicable version of reg 5.19.
From 1 July 2013 to 30 June 2017, a statutory instrument titled “Specification of training benchmarks and training requirements” numbered IMMI 13/030 was in force (2013 Instrument). On 1 July 2017, the 2013 Instrument was repealed and replaced by IMMI 17/074. However, the parties agreed at the hearing in this Court that the 2013 Instrument was the applicable instrument at the time of the Tribunal’s decisions. The 2013 Instrument relevantly stated:
I, Brendan O’Connor, Minister for Immigration and Citizenship, acting under regulations … 5.19 of the Migration Regulations 1994 (‘the Regulations’):
1.…
2.Specify for the purposes of … sub-sub-subparagraph 5.19(4)(h)(i)(B)(I) of the Regulations that the benchmarks for the training of Australian citizens and Australian permanent residents are those listed at Schedule A to this Instrument.
3.…
Schedule A to the 2013 Instrument, titled “Training Benchmarks”, relevantly stated:
…
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.
Expenditure that can count towards this benchmark includes: …
Expenditure that cannot count towards this benchmark includes training that is: …
As explained below, Departmental policy in the Procedures Advice Manual (version 3), commonly called PAM3, is relevant to the determination of these proceedings. At the hearing in this Court, the first respondent tendered an extract from PAM3 in force between 12 May 2017 and 30 June 2017. The parties agreed at the hearing that this was the version of PAM3 considered, and properly considered, by the Tribunal because it contained Departmental policy which addressed the interaction between reg 5.19(4)(h)(i)(B) of the Regulations and the 2013 Instrument. Since the 2013 Instrument was the applicable instrument at the time of the Tribunal’s decision, this version of PAM3 was the applicable version.
The extract from PAM3, under the heading “Training”, addresses various matters under different sub-headings. One sub-heading is “Recent expenditure”. It is stated under this sub-heading (Recent Expenditure Policy):
If the nominator is required to satisfy regulation 5.19(4)(h)(i)(B)(1), for expenditure to qualify as ‘recent’, the evidence in regard to training expenditure must demonstrate that the expenditure was incurred in the 12 month period immediately before the lodging of the nomination.
Provisions of Act relating to adjourning reviews
Sections 360(1) and 363(1) of the Act provided at the time of the Tribunal’s decisions:
360 Tribunal must invite applicant to appear
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
363 Powers of the Tribunal etc.
(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation;
(b) adjourn the review from time to time;
(c) subject to section 378, give information to the applicant and to the Secretary; or
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
FACTUAL BACKGROUND
The background in the following paragraphs is based on documents before the Tribunal, which are contained in two court books tendered at the hearing in this Court on 2 June 2025 - one court book in the Employer Proceeding (CBE) and the other court book in the Visa Applicant Proceeding (CBVA). The two court books contain the Tribunal’s decisions and documents before the Tribunal.
On 29 May 2017, the Employer applied, pursuant to reg 5.19 of the Regulations, for approval of a nomination of the Visa Applicant for a position of “Chef”. (CBE 22-30) The application attached a number of documents (CBE 31-65) which sought to meet requirements in reg 5.19(4) of the Regulations.
On 29 May 2017, the Visa Applicant applied for a subclass 186 Employer Nomination visa in the direct entry stream. (CBVA 20-35) The Visa Applicant’s wife and children were included in the application as secondary applicants. (CBVA 52) The visa application indicated that the position to which the application related was “chef” in the business of the Employer.
On 23 August 2017, the Employer’s representative provided a submission to the Department of Immigration and Border Protection (Department) in respect of the Employer’s application. (CBE 82-84)
On 25 July 2018, a delegate of the first respondent made a decision refusing to approve the Employer’s application for approval of a nomination on the basis that the Employer did not satisfy reg 5.19(4)(a) of the Regulations. (CBE 88-94) The delegate stated:
Based on the evidence presented and assessments above, I find the application for approval has not identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Therefore, the nomination does not meet reg 5.19(4)(a)(ii) [and therefore] does not meet 5.19(4).
On 3 August 2018, the Employer applied to the Tribunal for review of the delegate’s decision. (CBE 96-97) On the same day, the Tribunal sent the Employer’s representative a letter acknowledging receipt of the application. The letter stated in part:
If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.
On 27 August 2018, a delegate of the first respondent refused to grant the Visa Applicant and members of his family unit visas on the basis that the Visa Applicant did not satisfy cl 186.233(3) of Schedule 2. (CBVA 87-90)
On 7 September 2018, the Visa Applicant and members of his family unit applied to the Tribunal for review of the delegate’s decision. (CBVA 91-93)
On 26 February 2020, the Employer’s representative provided a submission to the Tribunal. (CBE 116-129) The submission:
(a)addressed the reason the delegate refused the Employer’s application for approval and sought to explain why there was a need for the employer to employ the Visa Applicant, and therefore the Employer met the requirement in reg 5.19(4)(a)(ii);
(b)addressed other requirements in reg 5.19(4), in particular 5.19(4)(d); and
(c)indicated that the representative was familiar with, and relied on, Departmental policy in PAM3 (see, for example, paragraphs 17, 18, 28, 40 of the submission).
On 5 February 2021, the Tribunal sent a letter to the Employer under s 359 of the Act requesting, by 19 February 2021, updated and current information with respect to the requirements in reg 5.19 of the Regulations. (February 2021 Letter) (CBE 221-223) The letter stated in part:
In order for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria in r 5.19 of the Regulations are met at the time of its decision. As the application for nomination was made under the Direct Entry nomination stream, the relevant criteria are in rr.5.19(2) and (4) of the Regulations.
The Tribunal now requires updated and current information addressing these criteria. Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give the following information in writing. We have given examples of the type of information you could provide:
….
7. If the nominated position is not located in regional Australia and the applicant has paid the non-regional position application fee, information about:
a. the need to employ the nominee in the nominated position; AND
b. the applicant’s business operating for at least 12 months and its plan for future training expenditure; OR
c. the applicant’s business operating for less than 12 moths and its plan for future training expenditure
•Invoices or contracts for employee training, a training program that includes a course outline, attendance and identifies increased work competencies, or records of investment in certain industry training funds or recognised industry bodies
On 16 February 2021, the Employer’s representative sought an extension of time until 5 March 2021 to provide the requested information, and on 17 February 2021 the Tribunal agreed to extend time to 5 March 2021.
On 5 March 2021, the Employer’s representative sent an email to the Tribunal which provided documents in response to the February 2021 Letter. (CBE 231-422) In light of the basis on which the Tribunal affirmed the delegate’s decision, it is relevant to note that the documents included:
(a)information that training expenditure between January and August 2018 was $35,657.84, employee salaries totalled $2,121,023.18 in this period, and therefore the ratio of training expenditure to employee salaries in this period was 1.86%; (CBE 276) and
(b)links to YouTube videos demonstrating training. (CBE 277)
On 23 April 2021, the Tribunal sent a letter to the Employer inviting the Employer to comment on potentially adverse information. (CBE 428-430) The adverse information was to the effect that a Departmental case note recorded a concern of an employee of the Department that the Employer had inflated the salary of the Visa Applicant “to meet the English and skills requirement for the associated visa application” and this information “suggests that the position may have been created to secure a migration outcome, rather than fill a genuine skills shortage”.
On 7 May 2021, the Employer’s representative responded to the invitation to comment. (CBE 432-437) The response indicated that the author was familiar with, and paid close attention to:
(a)commentary provided by the Tribunal to members of the Tribunal (see paragraph 13 and following); and
(b)Departmental policy (see paragraph 14 and following).
By letters dated 7 July 2021, the Tribunal invited the Employer (CBE 445-449) and Visa Applicant (CBVA 113-117) to attend a hearing before the Tribunal on 10 August 2021.
On 10 August 2021, the Employer and Visa Applicant attended the hearing before the Tribunal. (CBE 467-472 and CBVA 127-132)
As recorded in the Tribunal’s decision in the Employer’s matter at [29], during the hearing the Tribunal “provided the applicant with additional time to provide further evidence”.
On 20 August 2021, the representative for the Employer and Visa Applicant provided a post-hearing written submission and evidence to the Tribunal. (CBE 474-510)
On 16 September 2021, the Tribunal made a decision affirming the delegate’s decision refusing to approve the Employer’s application for approval of a nomination (Employer Tribunal Decision). (CBE 517-524)
On 16 September 2021, the Tribunal sent a letter to the Visa Applicant inviting him to comment on the fact that on 16 September 2021 the Tribunal refused to approve the Employer’s application for approval of a nomination. (CBVA 133-136) The letter explained that this information was relevant “because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination”.
The Visa Applicant did not respond to the Tribunal’s letter dated 16 September 2021.
On 1 October 2021, the Tribunal made a decision affirming the delegate’s decision refusing to grant the Visa Applicant and members of the family unit subclass 186 visas on the basis that the Visa Applicant did not satisfy cl 186.233(3) of Schedule 2 (Visa Applicant Tribunal Decision). (CBVA 143-147)
Employer Tribunal Decision
The Tribunal at [9] noted that the issue for the Tribunal was whether the Employer met the requirements for approval of the nomination set out in reg 5.19(4) of the Regulations.
The Tribunal at [10]-[11] recorded the Tribunal’s request for updated and current information in the February 2021 Letter and the provision of information in response to the letter on 5 March 2021.
The Tribunal at [12]-[22] recorded the Tribunal’s invitation to comment on potentially adverse information dated 23 April 2021 and the provision of a response to the invitation dated 7 May 2021.
The Tribunal at [23] made an upfront finding “that the requirements of reg 5.19(4)(h) are not met”.
The Tribunal at [24] summarised the cumulative requirements of reg 5.19(4)(h), and at [25] noted that one of the cumulative requirements in reg 5.19(4)(h)(i)(B)(1) was that “a nominator whose business has operated for at least 12 months must meet the requirements for training Australian citizens and permanent residents specified in the reg 5.19(4)(h)(i)(B)(1) legislative instrument”.
The Tribunal at [25]-[29] discussed:
(a)the training requirements in the 2013 Instrument – which refer to “recent expenditure by the business to the equivalent of” a specified percentage of the payroll of the business; and
(b)the Tribunal’s communications with the Employer’s representative at the hearing, and in a post-hearing submission dated 20 August 2021, about the training requirements.
It appears from the Tribunal’s reasons for decision that:
(a)the Employer’s representative believed “the relevant period to assess training benchmark requirements … is the 12 month period preceding the nomination application” (at [29]) with the effect that the reference to “recent expenditure by the business” in the 2013 Instrument meant “recent expenditure” in the 12 month period preceding the nomination application in May 2017; while
(b)the Tribunal considered “that the training requirement is to be determined at the time of decision” (at [28]) with the effect that the reference to “recent expenditure by the business” in the 2013 Instrument meant recent expenditure in the months prior to the Tribunal’s decision in September 2021.
The Tribunal at [30]-[31] considered Departmental policy in PAM3 concerning the meaning of “recent expenditure” in the 2013 Instrument. This is the Recent Expenditure Policy in paragraph 9 above. The Tribunal at [31] appeared to accept that the policy supported the representative’s interpretation of reg 5.19(4)(h)(i)(B)(1) explained in paragraph 39(a) above, but found the policy “goes beyond the language of the Regulations”, and suggested the policy was “not consistent with the relevant law”.
The Tribunal at [32]-[33] found that the wording in reg. 5.19(4) indicated that the requirements for approval of a nomination are to be assessed at the time of decision, and “there is nothing to suggest that recent expenditure is linked to the time of application”.
The Tribunal at [34]-[35] considered a request in the representative’s post-hearing submission that, if the Tribunal did not agree with the representative’s interpretation of the training requirements referred to in paragraph 39(a) above, the Employer should “be afforded an opportunity to incur any required training expenses before the Tribunal makes a decision”. The Tribunal declined to provide the Employer with further time.
Since the Tribunal declined to provide the Employer with further time to meet the requirements of reg 5.19(4)(h)(i)(B)(1), it followed, as found by the Tribunal at [36] and [37], that “the requirements of reg 5.19(4)(h) are not met” and the Tribunal must affirm the decision under review.
Visa Applicant Tribunal Decision
In circumstances where the Tribunal affirmed the decision to refuse to approve the nomination by the Employer, it followed that the Visa Applicant was not the subject of a nomination approved by the Minister, as required by clause 186.233(3) of the Regulations. The Tribunal made this finding at [16].
Since the Visa Applicant did not satisfy a criterion for the visa, it followed that, as found by the Tribunal at [18], the Tribunal “must find that the secondary applicants do not satisfy the secondary criteria for the grant of [the] visa”.
PROCEEDINGS IN THIS COURT
On 18 October 2021, the Employer lodged an application in this Court seeking judicial review of the Employer Tribunal Decision, and thereby commenced the Employer Proceeding. The application contained the following two grounds and particulars (as written) (Application):
Ground 1
1.In respect to the nominee, Mr Chia-Ming Huang, the second respondent (the Tribunal) misconstrued reg 5.19(4)(h)(i)(B)(I) of the Migration Regulations 1994 (the regulations) which required that the Tribunal be satisfied that the nominator’s business had operated for at least 12 months, and met the requirements for the training of Australian citizens and Australian permanent residents specified by the Minister in an instrument in writing (the training requirements).
Particulars
(a) The applicant had on 29 May 2017 applied to the first respondent for approval of the nomination of Mr Chia-Ming Huang for the occupation of Chef.
(b)The first respondent refused to approve the nomination, and this decision was affirmed by the Tribunal on the ground that the applicant did not satisfy the training requirements.
(c)The training requirements, as specified in legislative instrument stipulated that there be "recent expenditure" by the applicant of either, 2% of the payroll to an industry training fund, or at least 1 % of the payroll in the provision of training to employees.
(d)The applicant contended that the "recent expenditure" stipulated by the training requirements was to be measured as expenditure incurred in the 12 months immediately prior to the application to the first respondent for approval of the nomination.
(e)The Tribunal erroneously found that the "recent expenditure" stipulated by the training requirements was to be measured as expenditure incurred in the 12 months immediately prior to the decision of the Tribunal on review of the decision to refuse to approve the nomination.
Ground 2
2.The decision of the Tribunal to affirm the refusal to approve the nomination was unreasonable.
Particulars
(a)At a hearing on 10 August 2021 the Tribunal indicated to the applicant's representative that the training requirements were to be determined at the time of the decision of the Tribunal. The Tribunal provided the applicant with additional time to respond to this contention.
(b)On 20 August 2021 the applicant's representative wrote to the Tribunal with the following submissions:
(i)The "recent expenditure" stipulated by the training requirements was to be measured as expenditure incurred in the 12 months immediately prior to the application to the first respondent for approval of the nomination.
(ii)However, if the Tribunal continued to maintain that the requirements were to be determined at the time of the decision of the Tribunal, the applicant ought to be provided with an opportunity to make a payment to satisfy the training requirements, prior to a decision of the Tribunal.
(c)Without any further notice to the applicant, on 16 September 2021 the Tribunal proceeded to make a decision affirming the refusal to approve the nomination on the basis that the applicant did not satisfy that the training requirements at the time of the decision of the Tribunal.
(d)The failure by the Tribunal to provide the applicant with an opportunity to satisfy the training requirements, prior to the decision of the Tribunal, was arbitrary and amounted to a denial of procedural fairness which, in the circumstances, rendered the decision unreasonable
On 18 November 2021, the Visa Applicant filed an application in this Court seeking judicial review of the Visa Applicant Tribunal Decision, and thereby commenced the Visa Applicant Proceeding. The application contained the following three grounds (as written):
1. The decision of the second respondent (the Tribunal) to affirm the refusal of subclass 186 visas to the applicants (the visa refusal decision) was inextricably linked to a decision of the Tribunal to affirm the refusal to approve a nomination of the first applicant by the first applicant's employer, K & S Food Services Pty Ltd, for the position of Chef (the nomination refusal decision).
2. The nomination refusal decision is affected by jurisdictional error and is the subject of an application filed simultaneously with this application, in, K & S Food Services Pty Ltd v Minister For Immigration & Anor.
3.In the event that the Court sets aside the nomination refusal decision, the visa refusal decision should also be quashed: see, e.g., Mora v Minister for Immigration [2018] FCA 1819 at [52]-[57] (Collier J).
Following a period of inactivity, on 22 April 2025 the parties were notified by the registry of the Court that the two proceedings were listed for hearing on 2 June 2025.
On 16 May 2025, the applicants filed a written submission in the Employer Proceeding (AS) and in the Visa Applicant Proceeding. On 30 May 2025, the first respondent filed a written submission in the Employer Proceeding (RS) and in the Visa Applicant Proceeding.
Hearing on 2 June 2025
At the hearing in this Court on 2 June 2025, Nicholas Poynder of counsel appeared for the applicants in both proceedings. Nicole Maddocks of counsel appeared for the first respondent in both proceedings.
Ms Maddocks tendered the court book in the Employer Proceeding and the court book in the Visa Applicant proceeding.
Ms Maddocks read an affidavit of Tahlia Jackson filed on 30 May 2025 which annexed extracts from PAM3 as at:
(a)12 May 2017 to 30 June 2017; and
(b)17 January 2018 to 17 March 2018.
Mr Poynder and Ms Maddocks then made oral submissions which supplemented their written submissions. I address the submissions below.
CONSIDERATION IN EMPLOYER PROCEEDING
Ground 1
Regulation 5.19(4) of the Regulations and relevant parts of the 2013 Instrument, applicable at the time of the Employer Tribunal Decision, are set out in paragraphs 4 to 7 above.
Paragraph 39(a) above sets out the Employer’s construction of the interaction between reg 5.19(4)(h)(i)(B) of the Regulations and the 2013 Instrument, which the Employer put to the Tribunal at the hearing on 10 August 2021.
Paragraph 39(b) above sets out the Tribunal’s construction of the interaction between reg 5.19(4)(h)(i)(B) of the Regulations and the 2013 Instrument, which the Tribunal member put to the applicants’ representative at the hearing on 10 August 2021.
The applicants contend in this Court that, as a point of statutory construction, the Employer’s construction is correct, while the first respondent contends in this Court that the Tribunal’s construction is correct.
Mr Poynder, in his written submission, provides the following reasons in support of the Employer’s construction:
(a)In construing the 2013 Instrument, consideration may be given to the Explanatory Statement in relation to the 2013 Instrument. Paragraph 6 of the Explanatory Statement states:
The purpose of this Instrument is to provide training benchmarks for a person to meet, or have an auditable plan to meet, when they apply for an approval of nominated positions …
Mr Poynder relies on the words “when they apply for an approval” and submits that this phrase “is unambiguous and suggests that the purpose of the provision is to enable the proposed nominator to be able to show a track record of training before being approved for the nomination”: AS [25].
(b)The Tribunal ought to have taken into account Departmental policy in PAM3 in construing the interaction between reg 5.19(4)(h)(i)(B) and the 2013 Instrument. The relevant part of PAM3 is set out in paragraph 9 above. Mr Poynder relied on the statement that:
the evidence in regard to training expenditure must demonstrate that the expenditure was incurred in the 12 month period immediately before the lodging of the nomination.
Mr Poynder contended that this policy is “an extrinsic material which a decision-maker may take into account and indeed ought to take into account to the extent that such policy is not inconsistent with the legislation”: AS [26].
(c)In construing the interaction between reg 5.19(4)(h)(i)(B) of the Regulations and the 2013 Instrument, an aspect of the analysis in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; 253 FCR 267 (Singh) at [88]-[89] “supports [the applicants’] approach that the relevant point in time is the time of the application for approval of the nomination, rather than the time of the decision on review”: AS [29].
For the following reasons, I consider that the Tribunal’s construction of the interaction between reg 5.19(4)(h)(i)(B) of the Regulations and the 2013 Instrument was correct.
First, the language of most sub-paragraphs in reg 5.19(4) of the Regulations supports a conclusion that the decision-maker must consider whether the requirements are satisfied at the time of the decision-maker’s decision. I agree with the first respondent’s submission at RS [39] that if one considers reg 5.19(4)(h)(i)(B) in the context of the whole of reg 5.19(4), “the Tribunal was required to consider the state of affairs as they existed at the time the Tribunal made its decision”.
It follows that, in relation to reg 5.19(4)(h)(i)(B)(I), the question for the decision-maker was whether, at the time of the Tribunal’s decision, “the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub‑sub‑subparagraph”.
Second, following on from the first point, Schedule A to the 2013 Instrument must be read in a context where the question for the decision-maker was whether, at the time of decision, “the nominator meets the requirements for the training … that are specified by the Minister in” the 2013 Instrument.
Third, one paragraph of Schedule A to the 2013 Instrument states:
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.
This language is consistent with reading Schedule A as applying to the time of the decision-maker’s decision.
Fourth, the critical paragraphs of the 2013 Instrument are as follows:
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.
Ms Maddocks emphasised the word “recent”. I agree with the first respondent’s written submission at RS [39] that “the words of a statutory provision should prima facie be given their natural and ordinary meaning”. The word “recent” relates to the date of the decision-maker’s decision.
Fifth, Mr Poynder relied on paragraph 6 of the Explanatory Statement to the 2013 Instrument which is set out in paragraph 58(a) above. However, first, the meaning of paragraph 6 is ambiguous. Two alternative meanings are:
(a)The purpose of the 2013 Instrument is to provide training benchmarks for an employer to meet, so that the employer is aware of the training benchmarks at the time they apply for an approval of nominated position.
(b)The purpose of the 2013 Instrument is to provide training benchmarks which must be met by an employer at the time they apply for an approval of nominated position.
Mr Poynder advocated for the meaning in (b). I prefer the meaning in (a). Whichever meaning might be preferable, it remains the case that the meaning of paragraph 6 is ambiguous. Second, in any event, as stated in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (on which the first respondent relied at RS [41]):
… the task of statutory construction must begin with a consideration of the statutory text. So must the task of statutory construction end. That context includes legislative history and extrinsic materials … Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
Sixth, Mr Poynder relied on the Recent Expenditure Policy. However, as stated in Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514 at 518 in response to a party’s reliance on a Minister’s second reading speech to interpret legislation, “the words of a Minister must not be substituted for the text of the law”. To similar effect, in Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; 218 CLR 1 at [10] McHugh J stated that “it would be contrary to the rule of law, the supremacy of Parliament and the doctrine of the separation of powers to give any special weight to a Minister’s opinion as to what an enacted law meant”. This proposition has even greater force in relation to the opinion of an unnamed person, who drafted a departmental policy, as to what an enacted law meant.
Seventh, Mr Poynder relied on Singh at [88]-[89]. The paragraphs in Singh do not support the applicants’ position in the present matter. Mortimer J at [88] considered the proper construction of the phrase “position nominated in an application for approval that seeks to meet the requirements of” in cl 187.233 of Schedule 2 to the Regulations. Her Honour stated that the word “position” refers to a particular position at “the point in time … at which the employer nomination is submitted for approval under reg 5.19(1)”. That the word “position” in cl 187.233 has this meaning does not affect the proper construction of reg 5.19(4). In fact, her Honour at [89] appears to expressly accept that reg 5.19(4) is a “time of decision” criterion.
It follows that the Tribunal did not misconstrue reg 5.19(4)(h) of the Regulations or the 2013 Instrument.
Ground 2
Ground 2 of the Application is an alternative to ground 1. The nub of ground 2 is explained at AS [30]-[31] as follows:
[30] The Company and the representative were obviously caught by surprise by the Tribunals’ interpretation of the requirements of reg 5.19(4)(h)(i)(B)(I) and IMMI 13/030, which was raised for the first time in the hearing.
[31] It is contended that, in the alternative and if the Court agrees with the interpretation of the provisions by the Tribunal, it was unreasonable for the Tribunal to refuse any opportunity for the Company to “make good” the training benchmark requirement before the application was refused on this ground.
Minister for Immigration and Citizenship v Li
The applicants rely on Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li). In that case, as in the present case, the applicant contended that the Tribunal’s refusal to exercise its procedural power in s 363(1)(b) of the Act (see text of s 363(1) in paragraph 10 above) to adjourn the review was legally unreasonable.
Some propositions from Li are as follows:
(a)Discretionary powers in the Act, including the power to adjourn in s 363(1), must be exercised reasonably: Li at [29], [63], [88].
(b)There “is an area within which a decision-maker has a genuinely free discretion [which] resides within the bounds of legal reasonableness”: Li at [66].
(c)In considering whether a discretionary power has been exercised unreasonably, it is necessary to consider the scope and purpose of the relevant statutory provisions: Li at [23], [26] and [67].
(d)The scope and purpose of the power to adjourn in s 363(1) is connected to the purpose of s 360(1): Li at [74] and [79]. The purpose of s 360 “is to provide an applicant for review the opportunity to present evidence and arguments ‘relating to the issues arising in relation to the decision under review’”: Li at [83].
(e)An exercise of power may be legally unreasonable where the decision-maker has:
(i)“committed a particular error in reasoning, given disproportionate weight to some factor, or reasoned illogically or irrationally”: Li at [72];
(ii)given “excessive weight – more than was reasonably necessary” to a matter since “an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached”: Li at [74], [85];
(iii)failed to have regard to the purpose for which the statutory power is provided: Li at [85]; or
(iv)made a decision “for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations”: Li at [26].
(f)Even where a decision-maker has provided reasons for the exercise of a discretionary power, “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”: Li at [76].
All five judges of the High Court considered that the Tribunal’s refusal to accede to a request by the applicant’s migration agent to adjourn the review was legally unreasonable – see French CJ at [31], the plurality at [77]-[85], and Gageler J at [114]-[124].
In addition to the propositions in paragraph 72 above, “legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [40].
Facts and evidence specific to present matter
Some facts and evidence specific to the present matter are as follows.
First, as accepted by Ms Maddocks at the hearing in this Court, the Recent Expenditure Policy was misleading. Further, the Tribunal at [31] effectively found that the Recent Expenditure Policy was wrong and inconsistent with reg 5.19(4)(h)(i)(B) - by the findings that “this policy goes beyond the language of the Regulations and the statutory instrument” and “the Tribunal is not bound to apply policy and should only do so to the extent that it is consistent with the relevant law”.
Second, it is evident from the materials before the Tribunal that the applicant’s representative relied on Departmental policy in PAM3 throughout the visa application and merits review process: see, for example, paragraphs 19 (letter from representative dated 26 February 2020) and 24 (letter from representative dated 7 May 2021) above, and paragraph 78(d) (letter from representative dated 20 August 2021) below.
Third, the sequence of events leading to the Tribunal’s decision based on reg 5.19(4)(h)(i)(B) was as follows:
(a)According to the Tribunal at [27]:
At the hearing, the Tribunal requested current information about the applicant’s compliance with the applicable training requirements. Specifically, training expenses incurred in the last 12 months. Ms Ho advised that she believed the training requirements were no longer relevant.
(b)The Tribunal at [28] recorded its response to Ms Ho’s belief as follows:
In response, the Tribunal noted that from 12 August 2018, the training requirements in both streams were repealed by the Migration Amendment (Skilling Australians Fund) Regulations2018 (Cth). Clause 7602(6) as inserted by item 43 of Schedule 1 of these regulations expressly preserved the need to comply with them for relevant nominations made before this date. The Tribunal further advised that the training requirement is to be determined at the time of decision.
Although Ms Ho appears to have been mistaken in relation to her belief that “the training requirements were no longer relevant”, the Tribunal’s discussion at [28] indicated that the issue of whether or not the training requirements continued to be relevant involved some complexity.
(c)As recorded by the Tribunal at [28], “the Tribunal provided the applicant with additional time to provide further evidence”.
(d)On 20 August 2021, the applicant’s representative, within the time permitted by the Tribunal at the end of the hearing on 10 August 2021, provided further evidence and submissions to the Tribunal. The representative now accepted that the training requirements in reg 5.19(4)(h)(i)(B) still applied. However, the representative’s position was that, for reasons explained in the letter, “the relevant period to assess training benchmark requirements for ENS … is the 12 month period preceding the nomination application” (CBE 476 [14]) and “therefore the relevant period in this case is May 2016 to May 2017 (being the 12 month period immediately preceding the nomination application”) (CBE 477 [19]). The representative, in support of this position, relied on the Recent Expenditure Policy referred to in paragraph 9 above (CBE 476 [16]), and on the Explanatory Statement for the 2013 Instrument referred to in paragraph 6 above (CBE 477 [17]).
(e)The letter dated 20 August 2021 added at [21] (CBE 478):
Nevertheless, should the Tribunal deem otherwise, we request for our client to be afforded opportunity to incur any required training expenses.
Fourth, the 2013 Instrument specified, with reference to reg 5.19(4)(h)(i)(B), that the training requirements were “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 “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”. If the Recent Expenditure Policy was wrong concerning the meaning of “recent expenditure” in the 2013 Instrument and the Tribunal member’s interpretation was correct, the representative’s letter dated 20 August 2021 at [21] indicated that the Employer needed time “to incur any required training expenses”. A question, in respect of which there appeared to be no material before the Tribunal, was how much time the employer required, or reasonably required.
Fifth, three years had passed between the date the Employer applied to the Tribunal for review of the delegate’s decision (3 August 2018) and the date of the hearing before the Tribunal (10 August 2021). If the Tribunal member’s interpretation of “recent expenditure” in the 2013 Instrument was correct, the long delay in obtaining a hearing date in the Tribunal placed a burden or inconvenience on employers in satisfying reg 5.19(4)(h)(i)(B) - because the employer could not, before being informed of a hearing date, calculate the amount and timing of training to be provided to employees to satisfy reg 5.19(4)(h)(i)(B)(I).
Sixth, a matter potentially relevant to the Court’s consideration of whether the Tribunal’s refusal to accede to the applicant’s request for time “to incur any required training expenses” was legally unreasonable was the precise content of the exchange between the Tribunal member and applicant’s representative at the hearing before the Tribunal on 10 August 2021 concerning this issue. However, at the hearing in this Court, neither party tendered a transcript of the hearing before the Tribunal.
Manner in which Tribunal dealt with Employer’s request to adjourn review
In the context of the above facts and evidence, a question is how the Tribunal dealt with the request in the letter dated 20 August 2021 for time “to incur any required training expenses”. The Tribunal stated at [34]-[35]:
[34] In the submissions of 20 August 2021, the applicant’s representative requested that, should the Tribunal not agree with the applicant’s interpretation of the training requirements, the applicant be afforded an opportunity to incur any required training expenses before the Tribunal makes decision, pursuant to s 359A of the Act.
[35] The Tribunal respectfully notes that there are no circumstances before it that give rise to the procedural requirements set out in s 359A of the Act, which relates to adverse information. The applicant had multiple opportunities to provide information addressing the criteria, including a request for evidence of training expenses incurred in the last 12 months. At the hearing, the applicant was directly advised of the Tribunal’s interpretation of the training requirements. No contemporary evidence in relation to the company’s training expenditure was provided. On this basis, the Tribunal is not inclined to provide yet another extension of time.
The Tribunal at [35] provided two reasons in support of its decision not to accede to the Employer’s request. The two reasons, and observations concerning the reasons, are as follows.
First, the Tribunal stated that “the applicant had multiple opportunities to provide information addressing the criteria, including a request for evidence of training expenses incurred in the last 12 months”. However, as explained above and as the Tribunal was aware, the Employer’s representative relied on the Recent Expenditure Policy in PAM3 and the policy was at least misleading (as accepted by Ms Maddocks at the hearing in this Court), and perhaps wrong (which was the view of the Tribunal member). I consider it problematic that the Tribunal relied on this reason without taking into account that the Recent Expenditure Policy was misleading or wrong and the Employer’s representative appeared to have relied on the policy up to 20 August 2021.
Second, the Tribunal relied on the fact that at the hearing on 10 August 2021 “the applicant was directly advised of the Tribunal’s interpretation of the training requirements”. However, based on the Tribunal’s decision at [27]-[28], and in a context where neither party tendered the transcript of the hearing, it is unclear whether the Tribunal member told the representative that she considered that the Recent Expenditure Policy was wrong. Based on information in the court book in the Employer Proceeding, I infer that the member merely “advised [the representative] that the training requirement is to be determined at the time of decision” (Tribunal at [28]), but did not tell the representative that the member considered the Recent Expenditure Policy was wrong.
One reason for drawing this inference is the content of the Tribunal’s reasons at [28].
A second reason for drawing this inference is the content of the representative’s post-hearing submission dated 20 August 2021 at [11]-[14] where the representative wrote:
[11] During the hearing, the Member requested evidence to show that our Client meets the training benchmark requirements. Specifically, the relevant regulation is sub-sub-subparagraph 5.19(4)(h)(i)(B)(I) of the Regulations as at 29 May 2017.
[12] We submit that the Member correctly pointed out that it is a relevant consideration, at time of decision, to assess whether the Nominator complied with the training requirements.
[13] In this case, our Client has met the training benchmark requirements and the evidence of the same has been previously provided to the Department of Home Affairs. For ease of convenience, we have appended the said evidence. (Appendix F)
[14] Though assessed at the time of decision, the relevant period to assess training benchmark requirement for ENS – subclass 186 (Direct Entry Stream) is the 12-month period preceding the nomination application.
The content of the submission suggests that the member “pointed out that it is a relevant consideration, at time of decision, to assess whether the Nominator complied with the training requirements”, but the member did not add that she considered the Recent Expenditure Policy was wrong.
It then follows that:
(a)The Tribunal member’s statement at [35] that “the applicant was directly advised of the Tribunal’s interpretation of the training requirements” is not correct in respect of a material matter, since the member did not advise the representative at the hearing that “it is the view of the Tribunal that this policy goes beyond the language of the Regulations and statutory instrument”: Tribunal at [31].
(b)Prior to the Tribunal’s decision dated 16 September 2021, the Tribunal did not communicate to the applicant’s representative, either directly or indirectly, its view that the Recent Expenditure Policy was wrong.
Tribunal’s refusal to accede to request to adjourn review was legally unreasonable
For the following reasons, I consider that the Tribunal’s refusal to accede to the representative’s request for time to incur training expenditure was legally unreasonable.
First, the Tribunal placed no weight on the facts that:
(a)to the knowledge of the Tribunal, the Recent Expenditure Policy was wrong;
(b)based on the materials before the Tribunal, the applicants’ representative relied on the policy up to 20 August 2021; and
(c)prior to the Tribunal’s decision dated 16 September 2021, the Tribunal did not communicate to the applicant’s representative its view that the Recent Expenditure Policy was wrong.
This is the main reason I consider the Tribunal’s exercise of power was legally unreasonable. If the placing of “excessive weight” or “disproportionate weight” (Li at [72]-[74]) on a factor can result in the exercise of a discretionary procedural power being legally unreasonable, then the placing of no weight on a matter upon which a reasonable decision-maker would have placed weight can be legally unreasonable.
Where an applicant is misled by a representation by the Tribunal, this may involve procedural unfairness which vitiates the Tribunal’s decision: see Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601. Although legal unreasonableness “is not to be assessed through the lens of procedural fairness to the applicant” (Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26]), and one must not “infuse the implied condition of legal unreasonableness with notions of procedural fairness” (ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [18], the concepts of legal unreasonableness and procedural fairness are “closely linked” ( Li at [92]). In the present matter, it was unreasonable for the Tribunal not to place any weight on the unfairness which arose from the misleading or incorrect content of the Department’s Recent Expenditure Policy.
Second, for reasons explained in paragraphs 85 to 88 above, based on the materials before the Court, one of the two reasons on which the Tribunal relied in refusing to accede to the Employer’s request for additional time was not correct in respect of a material matter.
Third, because the Tribunal placed no weight on the matters in paragraph 90 above, the Tribunal failed to properly consider the statutory purpose for which the power in s 363(1)(b) was provided, which was to provide an applicant for review the opportunity to present evidence and arguments relating to the issues arising in relation to the decision under review. An issue arising in relation to the decision under review was whether the Employer met the requirement concerning training in reg 5.19(4)(h)(i)(B)(I) in a context where the Departmental policy on which the Employer relied in preparing evidence was misleading or wrong in relation to the evidence needed to be provided.
Fourth, there are similarities between the matters on which Gageler J relied in Li at [122] and the facts in the present matter. For example, the Visa Applicant had been in Australia for some years, the review by the Tribunal had been on foot for a long period of time without any delay on the part of the Employer or Visa Applicant, the Employer “sought…an adjournment of the review for a highly specific purpose clearly articulated by [its] migration agent”, “there was no reason to infer that the [Tribunal] considered that the adjournment would be likely to have been unduly protracted”, and the Tribunal “identified no consideration weighing in favour of an immediate decision on the review and none is suggested by the Minister” .
The first respondent correctly stated at RS [48] that the test of unreasonableness is a stringent one and the threshold for a finding of legal unreasonableness is high. I agree. However, for reasons explained above, I consider that the threshold is met in the present matter.
The first respondent added at RS [49] that “the Tribunal’s reasons in this matter disclose an evident and intelligible justification for refusing to provide the applicant more time”. For reasons explained above, I consider that the Tribunal’s reasons do not disclose an evident and intelligible justification for its procedural decision not to provide the Employer with more time.
CONSIDERATION IN VISA APPLICATION PROCEEDING
Since there is a jurisdictional error in the Employer Tribunal Decision, as agreed by the parties in their written submissions based on the analysis in Mora v Minister for Immigration and Border Protection [2018] FCA 1819 at [52]-[57], “it follows that … the visa decision cannot stand” (at [57]).
RELIEF
In October 2024, the Tribunal was abolished and replaced by the Administrative Review Tribunal. I have not obtained submissions from the parties on the appropriate wording for orders granting the applicants relief. In AXG18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 865, Judge Doust considered the appropriate wording in a similar context and explained the wording she considered appropriate. Subject to the qualification that I have not sought submissions from the parties on this issue, I agree with her Honour’s reasons. In my orders accompanying this decision, I will adopt the wording her Honour considered appropriate, but grant the parties liberty to apply within 7 days if they consider the wording is not correct.
COSTS
At the conclusion of the hearing, the parties agreed that I would hear submissions on costs at the delivery of judgment.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 16 October 2025
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