Sultan & Ors v Minister for Immigration and Multicultural Affairs

[2025] HCATrans 21

[2025] HCATrans 021

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S87 of 2024

B e t w e e n -

MD TIPU SULTAN

First Plaintiff

MEHRAB SULTAN

Second Plaintiff

MASUDA BEGUM

Third Plaintiff

HRIDIA SULTAN CHHUYA

Fourth Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Defendant

JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 19 MARCH 2025, AT 10.00 AM

Copyright in the High Court of Australia

____________________

HER HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR L. BOCCABELLA appears for the plaintiffs.  (instructed by Parish Patience Immigration Lawyers)

MR H.P.T BEVAN, SC appears with MR T. LIU for the defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Boccabella.

MR BOCCABELLA:   Thank you, your Honour.  Your Honour, all of the material is contained in the further amended application book, which, no doubt, your Honour has.

HER HONOUR:   Yes, I do.

MR BOCCABELLA:   Before I commence my formal submission, is there anything in particular your Honour would like to agitate at the beginning?

HER HONOUR:   No.

MR BOCCABELLA:   Thank you.

HER HONOUR:   I have read the written submissions.  The one thing I have not been through is all the objections, but I understand I have a document that records the agreed outcome.  I am content to operate on that basis, that the parties have agreed it.

MR BOCCABELLA:   Yes.

HER HONOUR:   I understand nobody has required for any cross‑examination.  So, it seems to me that if there are affidavits that need to be read, we should put those on the record.

MR BOCCABELLA:   Yes.  Your Honour, if I could adopt our agreed objections, which lists the relevant affidavits I am going to read and the relevant paragraphs.

I will take you through those in my submissions, is probably the, perhaps, easiest way to do it.

HER HONOUR:   Are you going to take me through the objections or just the affidavits?

MR BOCCABELLA:   Just the affidavits, I will only be ‑ ‑ ‑

HER HONOUR:   That is fine.  I will just ask – I might just make sure I can find the objections.  So, the objections are a document, they are filed 18 March 2025.  Is that right?

MR BOCCABELLA:   That is correct.

HER HONOUR:   And they have a list of the affidavits with “resolution/ruling” in the last column.  What I might do, just for the record, is actually take that in as an exhibit.

MR BOCCABELLA:   Yes, thank you.

HER HONOUR:   So, it is there on the record.  The objections will be exhibit 1.

MR BOCCABELLA:   Thank you.

HER HONOUR:   That is the 18 March 2025 document.  Okay.  I will notionally mark that exhibit 1, given that I only have an electronic copy, but that is fine.  All right?

MR BOCCABELLA:   All of the affidavits are in the further amended application book, in any event.

HER HONOUR:   Yes.  I will go back to the further amended book, which I have, which also bears the date 18 March 2025.  Maybe for convenience, I will just take the further amended application book, 18 March 2025.  Can I take that as exhibit 2, subject to the rulings that are set out in exhibit 1?  Is that a convenient course?

MR BOCCABELLA:   Yes.  Thank you, your Honour.

HER HONOUR:   The further amended application book, 18 March 2025, will make exhibit 2.  All right, you do not have to – the affidavits and documents are in, subject to the objections.  You can just take me through whatever it is you wanted to take me through in the affidavits, if that is how you would like to do it, and then Mr Bevan can do the same.

MR BOCCABELLA:   Yes.  Thank you, your Honour.

HER HONOUR:   And the evidence in.  Yes.

MR BOCCABELLA:   Yes.  Your Honour, firstly, could I just make this fairly obvious point that the plaintiffs said here – of course, not by choice, this is the ‑ ‑ ‑

HER HONOUR:   No, I know that.

MR BOCCABELLA:   None of us ‑ ‑ ‑

HER HONOUR:   You do not need to put it like that.

MR BOCCABELLA:   I would certainly not wish it to be asserted that for some tactical reason we are here ‑ ‑ ‑

HER HONOUR:   No, I understand.  That is fine.

MR BOCCABELLA:   We are here because we have to be here.  Your Honour, in essence, the plaintiffs’ case is really straightforward and very simple.

HER HONOUR:   One point.  I get that, I read the submissions.  It is a single point.

MR BOCCABELLA:   And in the end, it is just about the fact that there is a process whereby these State governments intermittently intertwined in the regulations of this particular visa.  It is all about the State governments choosing, in effect, the migrants they want to put up for application.  My submission, in summary, is that it is a pre‑vetting prequalification process.  That obviously does not mean that all of those people have to be granted a visa, certainly not, but if one looks at the reasoning of his Honour Justice Nettle in Wei, it does meet all the requirements that the type of documents which the delegate declined to ask for are the very documents or the very things that ordinarily a State government would look at in order to determine if this person is going to be a suitable migrant.

In my submissions, I will take you to the explanatory memorandum of the regulations which introduced this visa, which were all about the fact that the State governments would choose which people they wish to sponsor.  Indeed, at this moment in time, could I take you briefly to page 173 of the court book.  I will be using the words “court book” rather than “further amended”, obviously.

HER HONOUR:   That is fine.  Page 173, okay.  This is part of an affidavit.

MR BOCCABELLA:   Yes, this is part of the affidavit.  Now, it refers to a “screenshot” which is on page 252, which is the meeting, in effect, the screenshot meeting of the South Australian ‑ ‑ ‑

HER HONOUR:   Sorry, where are you – what paragraph are in on page ‑ ‑ ‑

MR BOCCABELLA:   Paragraph 13.

HER HONOUR:   So, “ST 9”?  Is that what you are referring to?  Is what they called “ST 9”?

MR BOCCABELLA:   Yes, and that is on page 252.  What it is, is a screenshot of a meeting between Mr Andrew Klimek, who is the South Australian representative, and the plaintiff.  That is at 252.  The reason I am taking you to this is the South Australian process is not just a ticker box, it obviously involves an interview as well.

HER HONOUR:   Let me go back to 173, because it is just a photo on 252.  I do not really know what that means, but let us just go back to ‑ ‑ ‑

MR BOCCABELLA:   What Mr Ali is deposing to is a screenshot of a meeting between Mr Andrew Klimek, who is ‑ ‑ ‑

HER HONOUR:   Right, from the South Australian Government.  Okay.

MR BOCCABELLA:   Yes, so it is not just a ticker box exercise, which is my submission.  Also, your Honour, could I take you to pages 342 to 347 of the application book.

HER HONOUR:   I have the regulation at 342.

MR BOCCABELLA:   Yes.  This is the regulation which, in effect, introduced the subclass 132 business visa to the Migration Regulations.  In particular, if we go to page 347, which is an extract from the explanatory memorandum, and you can see in the fourth paragraph:

The new scheme provides for an enhanced role for State and Territory Governments in sponsoring the numbers and skill level of business migrants –

HER HONOUR:   Yes.

MR BOCCABELLA:   

state sponsorship at both the provisional and permanent residence stages, with significantly lower requirements when sponsored, which will attract more business migrants to states and regions active in attracting business migrants –

et cetera.  And then the third‑last paragraph, at the bottom, under “subclass 132”:

This subclass is created to provide a direct path to permanent migration for applicants with exceptional business skills who are sponsored by a State or Territory.  Applicants who do not meet the criteria for this subclass must proceed through the two‑stage process –

So, what we have here, your Honour, is indeed a process whereby the State authorities do vet these people, do qualify them, and it is all part of the scheme.  It is not just obviously policy, it is in the statutory scheme, because a person – as you would have seen from the submissions – simply cannot apply for this subclass 132 visa, unless they already have State sponsorship.

At the risk of oversimplification, what it is:  a person applies to the State authority – in this case, South Australia – for a nomination, the nomination is given, and once a nomination is entered into the computer system of the Department of Immigration – which I will generally refer to as immigration – then there is a computer‑generated invitation to apply for the visa.  If one does not have either the State sponsorship or the invitation to apply, then one cannot apply for this visa.

The point I am making here is that the State governments play a pivotal role, and therefore when the delegate is looking at, what sort of information should I be looking at, the fact that the person is sponsored by a State authority is extremely pertinent and extremely relevant.  The issue, fundamentally, is that there is a large lag between when one actually applies and when the visa comes up for consideration.  Now, all the relevant criteria, including the criteria upon which the delegate refused a visa, are all time of decision criteria.

HER HONOUR:   Well, what is pointed out by the defendant is that although it is to be made at the time of the decision, the relevant criteria which is critical refers back to the period before the time of the application, so that, in this case, it is not that it was impossible for your client to provide the information.  Because if you look at the substance of the relevant clause, or criteria, it clearly relates back to the period before the application.  It would be a different case, it seems to me.  You would not have as much issue or debate about “obvious” if the criteria in terms said, at the time, that it is for the two years prior to decision, say.

MR BOCCABELLA:   Yes.

HER HONOUR:   Two years before decision, because that would then throw up an obvious issue, that someone would not necessarily know when the decision was going to be made and therefore – unless they got some notice of that – it would be a bit hard.  But it does not say that, in this case.  It says two to four years, or something, before application.

MR BOCCABELLA:   Yes.  Could I take you to page 21 of the court book, which is the actual online application.

HER HONOUR:   Yes.  Page 21.  Just bear with me.  Yes, I have that.

MR BOCCABELLA:   Now, this is the actual application lodged for the visa after the State nomination, and these are the critical parts that the delegate indeed observed.  That is, in the middle of the page, that the turnover for the businesses was – as you can see, it is not a small business.

HER HONOUR:   It starts earlier, obviously.  It goes all the way back to – I just need to find the start of it – okay, back to page 7, yes?

MR BOCCABELLA:   Yes.  So, it starts at page 7.  This is an online form.  When one actually has it in front of one on the screen, it does not quite look like this.

HER HONOUR:   No, I accept that.  Like a box, sort of, approach that you work your way through, or something.

MR BOCCABELLA:   Yes.  You answer all the questions and then it comes up with this.  Very briefly, let us just go through it quickly.  From page 7, one is just filling out the formal requirements saying who the person is.  Page 8 and 9, similarly, just going through the formal requirements, et cetera; passport details and the like.  Then the operative parts, of course, therefore come to page 20.  This is the name of the business, but:

The company manufactures and supplies feed catered to the fisheries and livestock industries.

Obviously, in the country they come from – Bangladesh – they list all of those details, they list their ownership/interests, they list the net assets, et cetera.  Then, when one moves over to the next page, is the critical point.  Remember, this is a sponsored visa applicant.

The sponsored visa applicant states, in the visa application, the turnover in 2019 was 50‑plus million Australian dollars, and then 2020 was $46 million.  This is not a pie shop, or a restaurant or a takeaway shop, this is a serious business sponsored by the South Australian Government.  The important thing is the next sentence, right in the middle of page 21:

Are these figures based on information provided in audited financial statements?

Yes –

So, that is the first point whereby I would submit that it is fairly obvious that the applicant is – I suppose the word “likely” is too strong, but certainly asserts that on the basis of the South Australian nomination, it would be most unusual if a person would tell untruths about something like that in the context of State nomination.  What has happened here is very adequately explained, in my submission, in the affidavit of Ms Carina Ford.  That is set out at pages 256 and 257 of the application book.

HER HONOUR:   Just bear with me.  So, that is Carina Ford’s affidavit?  Yes.  I have not checked, I mean, what the objections are to this and what the agreed ruling is, but in any event, yes.

MR BOCCABELLA:   No, there is one small objection, which I do not think I am even going to be taking you to, I am just checking.  The first sentence of paragraph 16 is objected to.  Therefore, I am not reading the first sentence.  Could I take you then, briefly, to the affidavit.  Ms Ford deposes to being a specialist in migration law, is a:

managing partner of Carina Ford Immigration Lawyers –

And she is also:

Chair of the Migration Law Committee of the Law Council of Australia.

Which, amongst other things, provides advice to the Federal Government, although it is, of course, a professional body consisting of lawyers in the Migration Law Committee, and then those who are part of that sector of the Law Council of Australia are, of course, practising migration lawyers.  She deposes to having:

extensive direct experience in business visas and migration law generally.

And points out – and this is another reason why we are here – on 30 June 2021, the government changed the process – obviously, as they are entitled to do – and no longer granted direct permanent resident visas, requiring people to go through a two‑stage process.  The question might be asked:  why did they not just reapply?  Well, they could not reapply.  Then she deposes to the fact that:

For a very long time, at least for a decade, generally there has always been a long period between when a subclass 132 visa was lodged and when a decision was made on that visa application.

She goes on to say, at page 2 – and, really, this is not controversial:

The time span was generally 2 to 3 years, sometimes longer.

All the criteria had to be:

assessed at time of decision –

She says at paragraph 9:

although some criteria refer back to the period prior to the invitation to apply for that visa.

Which your Honour highlighted a short time ago:

The situation was that, at some stage a delegate would be allocated to assess the visa –

It is not as if there was ‑ ‑ ‑

HER HONOUR:   I have read all the written submissions and this affidavit.  I mean, I understand the scope of the factual dispute and what – subject to one thing I will come back to – you say was a practice or a circumstance, a policy ‑ ‑ ‑

MR BOCCABELLA:   “Pattern of behaviour” was the word I ‑ ‑ ‑

HER HONOUR:   Pattern of behaviour, whatever it be.  I understand that.  I do also understand there is one other factual dispute which I picked up from the submissions, which was you say that the audited financial accounts were put into the South Australian Government, and the defendant says, well, you cannot actually infer that from the evidence.  I read your reply that says it “was obvious”, but I could not see which part of the evidence made that obvious, in any event.  I am just noting that so that whatever course you wish to take about that you can.

MR BOCCABELLA:   Yes, I will answer that now.  The person who was lodging the application was a migration agent, not a lawyer, and no longer working for the firm.  This is obviously some time ago, and the file records just do not allow us to prove that it was actually sent to the South Australian Government, and ‑ ‑ ‑

HER HONOUR:   I am only really interested in what the evidence is.  I do not know whether you are making a submission now or you are referring to evidence, I have no idea.

MR BOCCABELLA:   The evidence has to be that the plaintiff has not established that the documents were submitted to the South Australian Government.

HER HONOUR:   So, you accept that.

MR BOCCABELLA:   Yes.

HER HONOUR:   That is the audited accounts.

MR BOCCABELLA:   Yes.  Well, we cannot prove it.

HER HONOUR:   Okay.  I need to make a record of that, because your reply says it is obvious and then proved “beyond reasonable doubt”, so I was not quite sure where all that went.  If I record – you can correct me if I am wrong – the plaintiff accepts that the plaintiff has not proved that the relevant audited accounts were provided to the South Australian Government in support of the application denomination?

MR BOCCABELLA:   Yes, the inference ‑ ‑ ‑

HER HONOUR:   Okay, and that is accurate?  What I have just written, said on record?

MR BOCCABELLA:   The file notes on the solicitors’ file do not enable the solicitors to swear an affidavit to say that it was definitely sent.

HER HONOUR:   Okay.  I just recorded that as – I mean, I am going to proceed on that basis, you have not proved that ‑ ‑ ‑

MR BOCCABELLA:   If I could now move to the submission part of that point, the inference is that that would have been submitted, or at least sufficient information would have been submitted, to allow the South Australian Government to assess this application for what it was.

HER HONOUR:   Hang on, I just have to work out whether that submission as to an inference is actually consistent with what I have just written down.  So, is what you are saying:  the plaintiff accepts that the plaintiff has not proved that the relevant audited accounts were provided to the South Australian Government in support of the application for nomination?  Is there then a qualification:  but submits that something?

MR BOCCABELLA:   Well, submits that a reasonable inference, in administrative law sense, is that the South Australian Government received the documents.  It is not in dispute that the documents existed.

HER HONOUR:   Hang on a minute, I am just trying to work out what you are really saying.  I do not think “in administrative law sense” makes sense to me, because it is just a civil proceeding; it is on the balance; when I say “proved”, it is proved on it.  You have not proved on the balance of probabilities that you did provide them, but you are submitting that a reasonable inference – what is available – is that the audited accounts would have been so provided?

MR BOCCABELLA:   Yes, that is right.  That is as far as I can go.  I am not – yes.

HER HONOUR:   This is not a matter for me to write down, I am just trying to get your position clear.  You are saying that inference is available because of the nature of the nomination itself and criteria that had to be met?

MR BOCCABELLA:   Yes, and it is agreed between the parties – my learned friend will correct me if I am wrong – that certainly the accounts were available at all material times.  I mean, the accounts existed.

HER HONOUR:   Okay, when we come to Mr Bevan’s submissions, he can let me know whether that is agreed or not, I guess, but you say – where do I get the evidence that the accounts existed at all material times?  Do I have that evidence?

MR BOCCABELLA:   Yes, that is in the affidavit material.  That essentially starts at page 188 of the court book.

HER HONOUR:   Let me just find that.  Okay, so that is the auditors report.  I am not sure what the date on that is, but ‑ ‑ ‑

MR BOCCABELLA:   That particular one is 6 September 2018, and then they continue all the way to page 240.

HER HONOUR:   That is pages 188 to 240.  So, your point is:  the audited accounts existed at all material times.

MR BOCCABELLA:   Yes.

HER HONOUR:   That is what I should also infer.

MR BOCCABELLA:   That is right.  Had the delegate asked for them, this is what they would have got.

HER HONOUR:   Yes, so I should infer that, had the delegate requested the audited accounts, pages 188 to 240 would have been provided in response, is what you are saying.

MR BOCCABELLA:   Yes, that is right.

HER HONOUR:   That is the inferences that you – I see, okay.

MR BOCCABELLA:   That part, as I understand, is not in dispute, although, obviously, my learned friend may disagree with that, although not as I read the submissions.  That is obviously consistent, then – I mean, in my case, I have the advantage that I have the hardcopy of the book here.  That is totally consistent, of course, with page 21 of the court book, which I could just briefly take you back, because the documents are obviously ‑ ‑ ‑

HER HONOUR:   Yes, that is fine.

MR BOCCABELLA:   If you go back to page 21 ‑ ‑ ‑

HER HONOUR:   I am getting there.  Where it says “yes”.  Is that the answer you are referring to?  “Yes”?

MR BOCCABELLA:   Yes, and the figure, the exact figure.  So, those figures exactly line up with – I am not going to go through the calculations, but those figures ‑ ‑ ‑

HER HONOUR:   No, you just tell me they match.

MR BOCCABELLA:   I have personally gone through myself, and they match.  I mean, as far I as I could see.  I got the calculations and calculated the exchange rate, and they are accurate.  So, those figures are exactly what is in the audited documents, and the applicant said he had financial statements, and they existed.  Really, that is the point.

HER HONOUR:   That supports your – you say – “obvious” point?  That it was obvious.

MR BOCCABELLA:   Yes.  It was obvious that they were there, and then they had the South Australian imprimatur.  Basically, in my submissions, I go through what I say are the obvious points, and if I could take you to page 277.

HER HONOUR:   Page 277.  Were you going to take me to – at some point, could you just show me what you call the “South Australian imprimatur”.  It may be that you are going there now, but I am not sure.  So, let me go to 277.  That is your written submissions, yes.

MR BOCCABELLA:   Yes, but in essence, these are my points as to why it is obvious and why it should be ‑ ‑ ‑

HER HONOUR:   I am aware of those six facts and the response that has been made to them.

MR BOCCABELLA:   Yes.  On page 269 is the application tracker, and between the parties ‑ ‑ ‑

HER HONOUR:   Let me just find 269, because I am not sure what an application tracker is.  So, that is the South Australian ‑ ‑ ‑

MR BOCCABELLA:   That is the nomination, basically.

HER HONOUR:   Okay, let me just make a note of that.  Page 269, South Australian nomination.

MR BOCCABELLA:   And it is not in dispute between the parties that the applicant was nominated by the South Australian Government.

HER HONOUR:   Yes, I know that is not in dispute.  That is just a one‑page thing, is it?  That is what you get ‑ ‑ ‑

MR BOCCABELLA:   Yes.  What happens is the nomination is sent to the Department of Immigration, and by ‑ ‑ ‑

HER HONOUR:   I understand that process, I was just wondering if there was more on the nomination ‑ ‑ ‑

MR BOCCABELLA:   No, it does not say – it is not like a statement of reasons saying, congratulations, your business is accepted, et cetera.  It is something fairly basic, obviously.  In the application itself, if I could take you to that now, at page 295.  This is the application for the South Australian nomination.

HER HONOUR:   Hang on, let me just find that.  Yes, so that is the application.  Yes.

MR BOCCABELLA:   Now, obviously this was not before the delegate.  This is the South Australian document.

HER HONOUR:   Sure.

MR BOCCABELLA:   Yes.  So, in the middle of the page, the plaintiff says:

I intend to export grains and lentils grown in South Australia.

And says:

I currently hold the position of Managing Director –

of this company:

Our business produces feed for the fisheries and livestock industry in Bangladesh.  My intention is to source high quality grains and lentils to be exported to Bangladesh and utilised as ingredients of the livestock feed we produce.  The reasons for this is that the reputation of Australian products on the global stage is high –

et cetera, et cetera.  That is what it is about.  Now, not that the delegate had this, but the delegate ought to have been aware that some type of qualitative analysis would have been done by the South Australian Government.  It is not a rubberstamp thing.

I took you earlier to where the extract from the explanatory statement, where it is about – the pivotal relation between the State governments and the Federal Government is about the State governments choosing highly attractive candidates as candidates for visas.  I do not need to take you to it again, but if your Honour notes page 347, the explanatory statement specifically said, in the third‑last paragraph:

This subclass ‑ ‑ ‑

HER HONOUR:   I have that.  I already noted that one.  You took me to that.

MR BOCCABELLA:   Yes, which is:

This subclass is created to provide a direct path . . . for applicants with exceptional business skills who are sponsored by a State or Territory.

Well, the delegate ought to have known that that was the whole purpose of this 132 visa, and that was the whole purpose of having State sponsorship, and this plaintiff would have fitted into that category.

Now, answering the defendant’s submission that, look, the material on the website and indeed on the initial letter said:  we can make a decision at any time, you should get all your information now; and then that is said a number of times.  We do not deny that, but my submission is that did not actually reflect the practice or the pattern of behaviour, and without being derogatory, it is more of an incantation.  Of course, get all of your information in, but when there is such a lag, what happened was a pattern of behaviour and the practice, I would argue – whichever word is suitable – was that when it came for a delegate to be appointed, that delegate would send one of these section 56 notices, or could just informally say your application is under consideration.

That was a pattern of behaviour that was developed, and then one had to then submit:  what is your business plan, what do you really want to do?  Then there will be a qualitative assessment, obviously, of all the things that one would ordinarily take into account, not just in the regulations; is this a genuine business, et cetera.  They are the sorts of things which one would take into account.  Indeed, my learned friend has supplied another regulation that he wishes to take your Honour to, which talks about what is the definition of a “main business”.

HER HONOUR:   Yes, I have that, I think.

MR BOCCABELLA:   Your Honour, in the end, that is the sort of information one would supply at time of decision.  Of course, the figures relate back to time of application, and of course the regulation says:  give me the figures about your main business.  But really, in a practical sense, one would supply all of this at time of decisions, because it is going to be two or three years later.  If the business has gone bankrupt or the business has gone very bad, then those sorts of qualitative things would be taken into account.  Whether:

the applicant maintains, or has maintained, direct and continuous involvement in management of the business –

et cetera, and all those things.  But they would all be assessed at time of application.  So, what we really have, your Honour, here is ‑ ‑ ‑

HER HONOUR:   You mean at the time of decision?  What are you saying?

MR BOCCABELLA:   Yes, well, what ‑ ‑ ‑

HER HONOUR:   You said “at time of application”, so I am ‑ ‑ ‑

MR BOCCABELLA:   Sorry, no, at time of decision, one would assess whether the business was still viable, one would assess the business plans, and there would seem to be hardly any point to break it up into bits and pieces.

HER HONOUR:   I just need to clarify that, because the criteria that everybody has referred is 132.225, which is the one that says:

2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant’s main business, or the applicant’s main businesses together, had –

the relevant:

annual turnover –

So, it would seem to me, unless I am wrong, that regulation 1.11 – you would have to look at that question of what is the main business as at the time two to four:

fiscal years immediately before –

You would not do it at the time of determination, you would actually look at the question of “main business” for the two out of the four fiscal years immediately before.  I am just not sure how ‑ ‑ ‑

MR BOCCABELLA:   Yes, that is correct, but then if I could take you to page 334 of the court book, which is a ‑ ‑ ‑

HER HONOUR:   Okay, hang on a minute.

MR BOCCABELLA:   Starting at 333.

HER HONOUR:   Yes, that is the regulation.  Yes.

MR BOCCABELLA:   

The applicant has overall had a successful business career.

Inevitably, that would be assessed at the time of decision.  The next paragraph is, as I understand it, the one in question.  Then, as you move over, particularly to 132.227:

The applicant ‑ ‑ ‑

HER HONOUR:   You say you are relying on other information.

MR BOCCABELLA:   Other criteria.

HER HONOUR:   That may not be relating to the main business.  Anyway, I thought you said you would assess the “main business” one, and the only point I am making is you would not assess that one.  You would assess that one as required, but you are saying also look at 132.233.  You say, okay, well that is ‑ ‑ ‑

MR BOCCABELLA:   Regulation 132.223.

HER HONOUR:   If I just go back to 132.22, “criteria”.  Where does it say it is at the time of decision?

MR BOCCABELLA:   It says that earlier, at page 331.

HER HONOUR:   Page 331.  So, if I go back there, to subclass 132 ‑ ‑ ‑

MR BOCCABELLA:   One third of the way down, under 132.2, “primary criteria”:

All criteria must be satisfied at the time a decision is made on the application.

HER HONOUR:   Okay, so that is that one.

MR BOCCABELLA:   Then, indeed, as you move down the list, 132.211:

The applicant, and the applicant’s spouse . . . do not have a history of involvement in business activities that are of a nature that is not generally acceptable in Australia.

So, that is ‑ ‑ ‑

HER HONOUR:   Yes, I see.  I know what you are saying.  So, it is time of determination.  And we have 132.225, and then you referred to 132.227, did you, as well?

MR BOCCABELLA:   Yes, 132.227:

The applicant genuinely has a realistic –

So, rather than requiring an applicant to compartmentalise his or her material, the practice had developed that all of the material in a block was supplied when one got either the section 55 notice or an informal letter saying:  your application is now under active consideration – yes, it has been dormant for two plus, three years or whatever it might be – and supply all of your material.

My submission is that because of a practice that had developed, it was not necessary that all this be done when you lodge the application, because in the end, even that assessment – the assessment of what is your turnover – is still to be done at time of decision, but of course referable to facts, matters and circumstances existing in the two fiscal years prior to the invitation to apply, but it is still done at time of decision.  It is not as if, when the application is lodged, there is a screening process which says, well, let us just see if they have actually meant that.

Indeed, it is not as if there was no evidence.  Of course there is evidence.  If a person sponsored by a State or Territory authority asserts that they have a certain turnover and they do have audited figures, then, in my submission, it meets the criteria outlined in Wei and the other decisions referred to in that because it is obvious, it is crucial to the whole exercise, the person is sponsored.  Therefore, the obvious thing is to make the inquiry.  It is not onerous; it does not have to be a section 56 notice, just an email.  I mean, it is unreasonable not to proceed in these particular circumstances.

Obviously, there could be frivolous applications which look, on their face, to be not worthy of further consideration, of course.  This is not one of those.  It is, on its face, a large company where the applicant asserts there were audited documents.  Then, on the strength of the authorities in Wei, the obvious thing – central to the whole thing – is to make the inquiry.  Especially when it is a time of decision criteria, albeit referable to a date – not a time of application – before the invitation to apply.

I think my learned friends’ submissions characterise it as a time of application criteria, it is not.  It is a time of decision criteria referable to an earlier period, earlier than the application itself, referable to the invitation to apply for the visa, which is earlier in time.  My submission, from a commonsense point of view:  it is a serious application, there is State sponsorship, the whole point of this is for the State governments to select and prequalify the candidates, the person asserts that the accounts are audited and they meet the criteria.  It is logical that one would just write a letter or write an email saying:  we will produce all that.  It is central, and it is obvious and it is good administration.

HER HONOUR:   I understand that submission.

MR BOCCABELLA:   That is my submission in a nutshell.  It does not necessarily require that the State government had received all of this, it was just that – for good or for bad – the industry, for using a general word, was possibly seduced into thinking that he did everything at time of decision because of the practice that had developed.  The point made by Ms Ford is that there was no announcement.  There was no announcement saying:  look, I know we have done this in the past, we have stopped doing it; if you have a case on your books, get all your information in now, because we are going to go through them one by one.

Had that announcement been made again, of course, everybody would have complied, but the practice or patented behaviour had developed that because all of the criteria had to be assessed at time of decision that that is when one supplied the material, even though some of the criteria were referable to a period which predated the application.  But that would apply to many things:  the nature of a person’s business, their business history, and, of course, their plans would be assessed based on their whole business career.

So, the mere fact that particular criteria referenced a date prior to the application is not conclusive, as my submission is almost every part of the criteria would require an applicant to give extensive evidence on their past, predating the visa application:  their skills, their qualifications, their past experiences, their list of customers, and why they are suitable candidates.  The point of my submission – the fixation on the date of application – is a red herring, in effect.

The other point, of course, that I made in my reply, was that the delegate has not given evidence.  Of course, no obligation on that, but it does create the Jones v Dunkel point.  If there was this practice as stated by Ms Ford, then of course the delegate could have scotched that by saying, no there was never a practice, we just decided these cases individually.  Whilst it does not prove our case, it means that it is easier to find that there was such a practice.

Your Honour I am obviously ready, and willing and able to answer any other questions that your Honour may have.

HER HONOUR:   That is fine, thank you.

MR BOCCABELLA:   Thank you.

HER HONOUR:   Yes, Mr Bevan.

MR BEVAN:   Thank you, your Honour.  The issue is whether either this Court’s decision in SZIAI, adopted by Justice Nettle in Wei, or the requirements . . . . . condition of legal reasonableness required the delegate to issue a formal request under section 56 or an informal request for further information or documents.  In circumstances where no documents were sent or provided in support of the visa application when it was lodged in June 2021, nothing was sent or provided in the three‑year intervening period, such that when the delegate came to consider the application, the only information thought that was in was the form itself.  We say that the answer to that is no.

First and foremost, as we say in our written response, at paragraphs 22 to 25, the whole point of the regime – particularly in sections 54, 55 and 56 – is to provide certainty as to the information that the Minister must consider in an application; in an application comprising that which is in the form, in a document attached to the form at lodgement, or subsequently given.  It is the consideration of the written information contained in such an application that informs the obligation to consider it.  In this context, it is important that section 55(2) provides that the Minister is not:

required to delay making a decision –

And section 63(1) provides that:

the Minister may grant or refuse to grant a visa at any time –

It is against that statutory framework that the plaintiffs’ complaint falls to be considered.  As we have covered in writing . . . . . just now, nothing was submitted.  Now, that is of significance because the criterion in terms was directed to a period before the invitation to apply.

True it is that whether or not that criterion was satisfied is to be assessed at the time that the decision is made, but that timing factor does not alter the substantive terms of the criterion itself, which is directed to the period in the years leading up the invitation to apply.  Therefore, there was nothing beyond what was in the application.  True it is that the form had specifics and specific figures in it, but that is not in and of itself enough, we say, to give rise to an obligation or a duty, in any way, to request to further information.

As we say in our response at paragraph 25, that is just the normal outworking of the provisions on the facts of this case.  It is not peculiar to significant business visas, it is applicable to visas of all kinds, and that is so including where, in any given particular situation, information may need to be supplied to ensure its continued currency.  Partner visas is one example, protection visas may be another.  Our point is that when the statutory framework is properly understood, much of the plaintiffs’ complaint loses force.

We also say that the plaintiffs’ case is not advanced by either a fact of nomination or delay in processing, with or without any associated asserted practice pattern or behaviour.  As to the nomination, we accepted – which your Honour will get from the form of the criteria itself, as well as the explanatory memorandum – that this was a type of visa which involves the State governments and Territory agencies having some involvement to greater or lesser degrees, but the mere fact of the nomination does not advance the case.

The fact of the nomination was necessary to satisfy one of the criterions contained in Schedule 1, which is clause 1104AA(4) item 3 – I do not need to take your Honour to that – which is just simply that the visa applicant has been, in fact, nominated.  But as the terms and the conditions of that nomination itself make clear, the satisfaction of the visa criterion was always a matter for the applicant to satisfy the department.  I will just take your Honour to and show your Honour the relevant part in that nomination application.  That is in Mr Ali’s affidavit, exhibit ST4, in the application book at page 183.

HER HONOUR:   Thank you.  Yes, I have that.

MR BEVAN:   Yes, and it is the section under “document attachments”.

HER HONOUR:   Sorry, page 183.  Are you saying there is a heading?

MR BEVAN:   Sorry, no, “Department of Home Affairs”.

HER HONOUR:   Yes, I have that.

MR BEVAN:   And your Honour will see there, people are directed:

If your application for nomination is successful, you must also meet all visa criteria –

And then, in the second paragraph, they:

are the responsibility of the Department –

and a:

nomination does not guarantee your visa application will be successful.

HER HONOUR:   Yes.

MR BEVAN:   Pausing there, can I just take a slight digression, just in relation to some facts, just so your Honour has the correct position.  The document which your Honour sees at the application book, commencing at 176 through to 186, that is the application that was lodged with South Australia.

HER HONOUR:   Yes.  Let me just – yes.

MR BEVAN:   My learned friend took you to a different document.  I will come to that and then explain what that is.  It is that which then gives rise to the nomination.  My learned friend took you to the document which is at page 262, Mr Pahalawela’s affidavit.  Just to round up ‑ ‑ ‑

HER HONOUR:   Do you want me to go ‑ ‑ ‑

MR BEVAN:   No, your Honour does not need to.

HER HONOUR:   No.  Just the visa application, is it?

MR BEVAN:   No, that was a successful nomination by the South Australian Government.

HER HONOUR:   South Australia nomination, yes.

MR BEVAN:   The next step, just for completeness, is that applicant is then invited to apply for the visa.

HER HONOUR:   Yes.

MR BEVAN:   That is in Mr Copas’ affidavit, at application book page 71.

HER HONOUR:   Page 71, okay.

MR BEVAN:   I do not need to take your Honour to it.

HER HONOUR:   No, that is fine.  Thank you.

MR BEVAN:   But that completes that.  My learned friend took you to a different document at page 295.

HER HONOUR:   Yes.

MR BEVAN:   Or an extract at page 295.

HER HONOUR:   Do you want me to go there?

MR BEVAN:   If your Honour goes there, and I will explain why this is not the document which went to South Australia.

HER HONOUR:   Okay, so hang on a minute.  I will just get there.

MR BEVAN:   It is very similar, but it is not the precise one.

HER HONOUR:   So, this says “Government of South Australia” as part of the document beginning at 293.

MR BEVAN:   Page 293, yes.

HER HONOUR:   And what are you saying about this?  This is not ‑ ‑ ‑

MR BEVAN:   This is not the application that was lodged for the nomination in this case.  That document is the one at page 176.

HER HONOUR:   Right.

MR BEVAN:   The point that my learned friend was taking out of it, he will also be able to take out from the one that was in fact lodged.

HER HONOUR:   Okay.

MR BEVAN:   Probably in better detail, and in fact probably better for him, I think.  But I just need to correct what this is.  As your Honour will see at the top of application book 293, this is described as an:

Intention to Apply –

in respect of a:

188 Visa –

HER HONOUR:   Yes.

MR BEVAN:   This document was produced in answer to a request for documents issued by my instructing solicitors, which your Honour will see the request at page 292.

HER HONOUR:   Okay, page 292.

MR BEVAN:   Your Honour will see we issued a request under section 167.

HER HONOUR:   Yes.

MR BEVAN:   The document, for whatever reason, commencing at 293 was produced in answer to that request.  This is a long way around to say that your Honour should ignore the document commencing at 293.

HER HONOUR:   That document, yes.  Okay.  So, it should be the one at 176 to 186.

MR BEVAN:   Yes.  Now, as to the nomination, can I explain to your Honour, also, the point that your Honour engaged in a discussion with my learned about, about the evidence and the financial statements.

HER HONOUR:   Yes.

MR BEVAN:   If your Honour has – your Honour will need exhibit 1 and Mr Ali’s affidavit.  Exhibit 1 is the ‑ ‑ ‑

HER HONOUR:   Yes, I will just get exhibit 1.  Hang on one moment.  Yes.

MR BEVAN:   If your Honour sees in exhibit 1 in Mr Ali’s affidavit, paragraphs 4, 6, 8 and 10 are not read.

HER HONOUR:   Paragraphs 4, 6, 8 and 10 not read, yes.

MR BEVAN:   Are not read.  And the exhibits, being audited financial statements, are tendered subject to an agreed limitation that has two limbs, which your Honour there sees, that they are evidence of what was available at the time for nomination and for the visa were made; and two, what would have been provided in response to requests for the audited financial statements.

HER HONOUR:   Yes.

MR BEVAN:   Now, I will go ‑ ‑ ‑

HER HONOUR:   So, you do accept that that is what they are evidence of – one and two.

MR BEVAN:   Yes.

HER HONOUR:   Yes.

MR BEVAN:   But the next step, which is whether it is proven on the documents or otherwise that an inference is available that they were in fact submitted to the South Australian Government ‑ ‑ ‑

HER HONOUR:   Sure.  You do not accept that.

MR BEVAN:   I say no.  Yes, I do not accept that, and I will explain to your Honour very quickly why and how that arises.  If your Honour goes to page 182 of the application book.

HER HONOUR:   Can you just let me make a note before I go there.  So, now I am going to page 182.

MR BEVAN:   This is part of the application for nomination that was submitted to South Australia.

HER HONOUR:   I know, is this because “documents”?

MR BEVAN:   Correct.

HER HONOUR:   Yes.  Underneath “documents” it has two attachments:  “passport”, et cetera, and nothing else.

MR BEVAN:   Yes.  That is correct.  We know that there is a page missing because the next page follows on numerically in its pagination – page 8 – and so we say that the inference is not open in the face of that material.  But we also say or recognise that it does not advance matters, really, over and above the statutory framework criteria itself requiring a nomination, and the application form which had the specifics in it.  That is why our focus is on the application form itself; the obligation does not arise.

In relation to delay, as mentioned and as we have said in paragraph 25, this was a time for invitation to apply for the criterion directed to the state of affairs as they existed before that time.  Therefore, the length of any delay is not material, not directed to or otherwise going to affect that historical position.  The assertion as to the associated practice, in my respectful submission, does not go anywhere.  For one thing, the case is not put at the level of an operative estoppel, and that would face difficulties, in any event, in the area of administrative law.  The evidence, then, is only that of Ms Ford.  Can I direct your Honour to a note, also in exhibit 1.

HER HONOUR:   Yes, hang on.

MR BEVAN:   So, it is exhibit 1 on page 3.  Under the table, your Honour will see recorded there an agreement between my learned and me:

that no Browne v Dunn point will be taken by reason of not cross‑examining Ms Ford with respect to the existence and nature of the asserted practice.

HER HONOUR:   I see, yes.  Sorry, I do see that.

MR BEVAN:   Your Honour will read Ms Ford’s evidence, such as it is, against that background, also.  But even looking, then, at Ms Ford’s affidavit, which your Honour ‑ ‑ ‑

HER HONOUR:   I will just go back to that.  That is at page ‑ ‑ ‑

MR BEVAN:   Page 256.

HER HONOUR:   Yes.

MR BEVAN:   Now, her evidence, as your Honour will glean from reading the affidavit, is at a level of generality at a broad picture or perspective.  That is so, expressly, Ms Ford rightly talks about things generally, and your Honour will see the word “generally” in paragraphs 7, 8, 11, 14 and 15.  It also, in any event, supports the main submission that we make, as to the statutory framework and the whole point to making sure that material is provided.  At paragraph 15, Ms Ford identifies, in the second and third line:

it’s the preferred method to lodge applications decision ready –

And that is for very good reason in the statutory framework, because, as we know, decisions can be made at any time, and it is the application itself and the documents subsequently provided or lodged with it that comprise the material that to which the Minister must have regard when considering the application.  We have given your Honour the authorities.  So, when Ms Ford there speaks about:

generally the practice to give . . . further information –

It is against the background, as she rightly says in paragraph 15, as to what the preferred method is.  That is:

to lodge applications decision ready –

Ms Ford’s evidence, on its face, says nothing at all about the existence of an assertive practice where applications are lodged with no documents.

HER HONOUR:   Sorry, I missed that.

MR BEVAN:   Where there is just application form and nothing else.

HER HONOUR:   I see.

MR BEVAN:   Your Honour, Ms Ford very properly, if I may say, in paragraph 17 points out that she has no connection with my learned friend’s instructors, and that she has:

no particular knowledge about the particular circumstances of the plaintiffs.

So, when your Honour comes to read Ms Ford’s evidence as to the asserted practice, pattern or behaviour, it is against that background as to the preferred method.

That practice – even the asserted practice – accommodates what the plaintiffs rely on, which is the updating of information where relevant, because where the information has already been provided, then all that may be required – consistently with departmental policy to which we have referred in our written submissions – is a request just for anything updated.  We say the delay point in the asserted practice also goes nowhere.

So, there was nothing – no critical fact, the existence of which is easily ascertained – no objective circumstances in this case that required the delegate to make a request, or otherwise makes the delegate’s decision to refuse to grant the visa with the circumstances or the material available for the – otherwise affected by jurisdictional error or outside the boundaries of the decisional freedom.  We make an additional point, in paragraph 30, which goes both to the SZIAI point and materiality.

The delegate’s finding had two limbs:  both whether the company was the main business and then the turnover requirement.  The plaintiffs’ case, as we see it, is only directed to the latter and says nothing about the former.  The former would require consideration of the matters in regulations 1.11 and possibly 1.11A.  The short point that we make is that there is nothing in the putative inquiry put forward by the plaintiffs that goes to that aspect, and therefore it robs the inquiry of the character of being a critical fact, the existence of which is easily ascertained.  It otherwise is ‑ ‑ ‑

HER HONOUR:   Sorry, the critical – sorry, I will let you finish.

MR BEVAN:   And then we also then say that the putative inquiry, which is at this stage just limited to the audited financial statements, would not be material in that sense because it is not directed to the “main business” for satisfying regulation 1.11.  An inquiry as to the audited financial statements may have led, if they were then provided, to further questions or further inquiries, but that sequential postulation itself identifies, in our submission, that it is not the existence of a critical fact, the existence of which is easily ascertained.

In Wei, in contrast – we have given your Honour the reference – the critical fact there was dispositive to the decision itself, and it was critically ascertained.  SZIAI, on the other hand, was not, because that was just questions about the credibility of declarations.  But on either analysis, we say, this just does not get over the line.

HER HONOUR:   The issue I was going to raise with you is if “critical” carries with it a concept potentially determinative of the application, then “main business” is one issue, but you say the only thing that was in there was the form, and therefore there are whole bunch of other criteria, as well, which is unknown, the answer to which would be unknown to the delegate.  Okay, I understand the submission.

MR BEVAN:   Those are my submissions.

HER HONOUR:   Thank you.  Reply, Mr Boccabella.

MR BOCCABELLA:   On the last the point, could I take you to page 35 of the appeal book.

HER HONOUR:   Hang on a minute, I just have to get there.  Got it.

MR BOCCABELLA:   Your Honour, the critical fact identified by the decision‑maker was clearly the turnover, and the delegate makes no reference to the actual figures, may not have appreciated, in fact, that it was a large company of turnover of between $46 million Australian and $50 million Australian, and that is the critical fact.  The delegate said:

I am not satisfied that the Company can be considered the applicant’s main business or that the company had the prescribed amount of turnover . . . before the time of invitation to apply –

Now, the “main business” issue would have been identified in the audited statements, because it would have revealed the nature of the business.  Your Honour, if we come back to and if I could take you to the exact words – at page 247 – of the test.

HER HONOUR:   Just before you do that, what seems to me to be relevant to the point that Mr Bevan raised is actually the following paragraph, which is:

I have not made a finding as to the applicant’s eligibility under all other criteria –

That was the point that I was making.  So, you get the paragraph saying:

not satisfied . . . main business –

not satisfied:

prescribed amount of turnover . . . therefore does not meet –

And then:

I have not made a finding –

about anything else.  Meaning that whatever else can be said, it cannot necessarily be said that if the audited accounts had been provided, necessarily all criteria would have been satisfied.  I do not see how that could be said.  At best you could say there may have been an opportunity for all other criteria to be satisfied, but we do not know whether it could have been one way or another.

MR BOCCABELLA:   What would have happened is that if the letter had gone out saying:  where are the audited statements?  Of course, that is obviously the trigger to supply all the time of decision criteria, and that is the point.

HER HONOUR:   I know, but my point is that I do not know that there is evidence of satisfaction.  Anyway, I am not the delegate, but it did not happen, therefore we do not know.  It is not like there was a finding that all criteria were satisfied except for that criterion.  That is the only point that is being made.

In which event, you would be able to say that had the criteria been satisfied, then it would have followed, on the delegate’s own reasons, that it would have been granted.  It is only going to whether “critical” carries with the determinative, or something more than a mere possibility of a successful outcome.

MR BOCCABELLA:   Yes.  First of all, approaching it from the reverse‑engineering end, it is not a mere possibility in this case that a company of this size would not ordinarily meet the criteria, with the South Australian approval.  Now, the South Australian approval obviously included an interview, as you saw the evidence of.  We do not necessarily know what the interview is, but a delegate is expected to know that a State authority, whoever they might be, would have carried out some sort of inquiries as to the bona fides of the applicant, otherwise they would not be sponsoring them.  That is what the regulations state, and that is what the explanatory memorandum stated.

So, the difficulty with my learned friend’s argument is that the audited accounts, being as detailed as they are, would have revealed sufficient information to have met the reason why the delegate refused it.  It is standard operating procedure, in all visa applications, that the delegate gets to the point where there is a refusal and then stops.  I have not seen a decision at the delegate stage, and even at the tribunal stage, where the delegate goes on to assess the whole application.  They do not.

HER HONOUR:   No, no.  It is clear that that did not happen in this case.  That is the point that is being made, that you do not know what would have happened with the rest of it.

MR BOCCABELLA:   My submission is that if it is a question of materiality, a company of this size with the audited financial documents available, it is not fanciful to assume that they would meet the other criteria, given the nature of the inquiries that would have been made by any State government.

HER HONOUR:   Okay.

MR BOCCABELLA:   Your Honour, it is not central to my argument that an inference necessarily needs to be drawn that the South Australian Government had it.  What is simply important is that the documents existed, and they would have been available.  That is all that is necessary, in my submission.  My final point, really, on the critical aspects, if I could just find that, is really – if I could take you to page 274.  I apologise for all the ruffling of papers, but I am doing it very close to the microphone.

HER HONOUR:   No, that is fine.  Just let me make a note here.  So, page 274 – I will just find that.  That is your submissions, yes.

MR BOCCABELLA:   Yes.  So, section 55 of the Migration Act of course existed at this time, when his Honour Justice Nettle made this decision.  Section 55 is about that if an applicant does supply material, then the Minister has to take it into account, but what the decision in SZIAI makes clear is that – notwithstanding the fact the Minister does not necessarily have a statutory obligation from a statute, but in terms of making a decision which is reasonable and in terms of making a decision which is proper – to

refuse or grant a visa, then the failure to make an obvious inquiry – now, the obvious inquiry in this case is because the turnover was identified precisely, and the existence of the audited statements was not.  That was evidence.  The mere fact that it was not necessarily corroborated with other figures is – it was obvious.  Now, there is:

an obvious inquiry about a critical fact –

Well, the critical fact was made critical by what the delegate decides.  The critical fact was that the delegate said:  I do not have the audited statements, even though they exist:

the existence of which is easily ascertained –

In my submission, it is not just easily ascertained by the inquiry, it was ascertained by reading the application.  Therefore, those three things:  “obvious inquiry”, “critical fact” and “existence easily ascertained”.  Then, the failure to make that inquiry is:

a sufficient link to the outcome of review to constitute a constructive failure to exercise jurisdiction.

In very simple terms, that is our case.  Obvious inquiry, it was all there, in any event the application – even though it was required to be assessed at an earlier time, the regulations required the assessment to take place at time of decision.  The delegate knew it was there, the delegate was told they were there, they were given the exact figures, and therefore the failure to make that inquiry makes:

a sufficient link to the outcome of review to constitute a constructive failure to exercise jurisdiction.

And that is our case, in a couple of sentences.  Thank you, your Honour.

HER HONOUR:   Thank you.  All right, I thank the parties and their representatives.  I will reserve the decision.  The parties will be notified when judgment is to be handed down.  Otherwise, I will adjourn.  Thank you.

AT 11.24 AM THE MATTER WAS ADJOURNED