Trustee for K & K Husna Trust v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1011
•1 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Trustee for K & K Husna Trust v Minister for Immigration and Citizenship [2025] FedCFamC2G 1011
File number(s): SYG 1306 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 1 July 2025 Catchwords: MIGRATION - approval sought of nominated position – s 140GB(2)(b) of the Migration Act 1958 (Cth) – reg 5.19 of the Migration Regulations 1994 (Cth) under the Direct Entry Nomination Stream – whether the Tribunal misinterpreted reg 5.19(4)(h)(ii)(F) by failing to follow or take into account the advice of a body specified by the Minister in an instrument in writing that there was a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control– no jurisdictional error – application dismissed.
PRACTICE AND PROCEDURE – extension of the concept of McKenzie friend to allow submissions to be made on behalf of the applicant.
Legislation: Migration Act 1958 (Cth), s 140GB
Migration Amendment Regulation 2012 (No. 2)
Migration Regulations 1994 (Cth), regs 5.19, 5.19(1), 5.19(4), 5.19(4)(d)(i), 5.19(4)(e), 5.19(4)(h)(ii)(B), 5.19(4)(h)(ii)(D), 5.19(4)(h)(ii)(F), 5.19(4)(ii)(h) and 5.19(5)
Migration (IMMI 16/045: Regional Certifying Bodies and Regional Postcodes) Instrument 2016
Migration (IMMI 17/058: Occupations for Subclass 187 visas; Skill, Age and English language for Subclass 186 and Subclass 187 visas) Instrument 2017
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Bharaj Construction Pty Ltd v Minister for Immigration & Anor [2016] FCCA 902
Hamod v New South Wales [2011] NSWCA 375
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24
Nepal v Minister for Immigration and Border Protection [2015] FCA 366
SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445
Division: General Federal Law Number of paragraphs: 58 Date of hearing: 27 May 2025 Place: Sydney Applicant: Appeared via Webex Applicant’s McKenzie friend: Ms S Husna Counsel for the First Respondent: Ms F McNeil Solicitor for the First Respondent: Ms Q Ren of HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1306 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TRUSTEE FOR K & K HUSNA FAMILY TRUST
Applicant
AND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
1 JULY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KAUR-BAINS
The applicant, who operated a farming business at a property in Sandy Beach, applied for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (Regulations). The applicant nominated Ms Kulwinder Kaur (the nominee), a citizen of India, in the position of primary products inspector.
The Administrative Appeals Tribunal, in its decision dated 28 April 2020, was not satisfied that the applicant met reg 5.19(4)(h)(ii)(B) of the Regulations, being that there was a genuine need for the applicant, as the nominator, to employ the nominee to work in the position under the applicant’s direct control. On that basis, the Tribunal found that reg 5.19(5) of the Regulations required the Tribunal to refuse to approve the nomination.
The applicant has sought judicial review to this Court of the Tribunal's decision on the grounds set out at [25] of this judgment. This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
For the reasons that follow, no jurisdictional error is disclosed and the application is dismissed.
BACKGROUND
On 24 August 2016, the applicant applied for approval of the nominee in the position of primary products inspector (Court Book (CB) 1 to 9).
As part of the documents submitted to the delegate, the applicant provided Form 1404 headed Regional Sponsored Migration Scheme – Regional Certifying Body Advice (CB 16 and 17), within which the Regional Development Australia Mid North Coast declared that its advice was that for the purposes of reg 5.19(4) it was satisfied of the following:
•there is a need for a paid employee in the nominated position within the business activities of the nominating employer;
•the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position; and
•the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.
Delegate’s decision
On 24 October 2017, the delegate refused the application for nomination on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(d)(i) of the Regulations. That criteria required the employee to be employed on a full-time basis in the position for at least 2 years. The delegate found the applicant had not demonstrated that the applicant’s business had the financial capacity to provide full-time employment to the nominee in the position for at least two years (CB 86 to 91).
On 6 November 2017, the applicant sought review of the delegate’s decision to the Tribunal (CB 92 to 93).
Tribunal’s invitation to provide information
By letter dated 19 November 2019, the Tribunal sent to the applicant an invitation to provide information. That letter set out that in order for a nomination of the position to be approved, the Tribunal must be satisfied that the relevant criteria in reg 5.19 of the Regulations were met at the time of the decision, relevantly the letter set out that the applicant needed to satisfy the Tribunal that there was a need to employ the nominee in the nominated position and why the position could not be filled by an Australian citizen or permanent resident living in the same local area (CB 113 to 116). The applicant was represented by a migration agent and responded by letter dated 17 January 2020, providing numerous documents which included under the heading “Need for full time position”, reasons and supporting evidence as to the need for the nominated full-time position (CB 122 to 316).
Invitation to attend a hearing before the Tribunal
By letter 14 February 2020, the applicant was invited to attend the hearing (CB 321 to 322). Following the invitation to attend the hearing, the applicant provided a further statutory declaration sworn on 6 March 2020 (CB 326 to 342). The hearing record recorded that the hearing was held on 11 March 2020 and the applicant appeared by his director Mr Kirpal Singh Husna, who had provided the statutory declarations, with the migration representative (CB 346 to 348). The nominee and her husband and child also attended the hearing.
Following the hearing, a further statutory declaration from Mr Kirpal Singh Husna declared on 18 March 2020 and other documents were provided to the Tribunal (CB 358 to 464).
TRIBUNAL’S DECISION
The Tribunal at [8] of its reasons identified the relevant issue was whether the applicant met the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4) of the Regulations, which provision the Tribunal extracted as an attachment to its decision.
The Tribunal identified the numerous documents that had been provided by the applicant before the hearing and after the hearing ([10], [11] and [18] of its reasons).
The Tribunal stated that it had serious concerns as to Mr Husna’s, the director of the applicant’s, credibility for the reasons set out at [54] of its reasons, being:
(a)The inconsistent evidence given as to the applications received in response to the applicant’s advertisement for the position of primary products inspector ([54(a)] of the reasons).
(b)The Tribunal’s finding that Mr Husna in his letter dated 24 August 2016, had made certain claims in relation to the employment of primary products inspectors, which were misleading and intended to strengthen the applicant’s nomination application (([54(b)] of the reasons).
(c)The inconsistent evidence given by Mr Husna as to the employment of Mr Baljeet Singh, where he gave contradictory evidence, where on the one hand he said in the statutory declaration that Mr Baljeet Singh never worked for the applicant as a primary products inspector and during the hearing gave contradictory evidence that Mr Singh had in fact worked for the applicant for a short period but not as a primary products inspector (([54(c)] of the reasons).
The Tribunal noted that Mr Husna’s lack of credibility undermined the evidence presented by Mr Husna in support of the nomination application, particularly in relation to the requirement that there was a genuine need for the applicant to employ a paid employee to work in the position under the applicant’s direct control ([55] of its reasons).
The Tribunal at [56] to [68] of its reasons considered the issue of whether there was a genuine need for the paid position of primary products inspector for the nominee. I will deal with the Tribunal’s analysis of the evidence below when considering ground 1.
PROCEEDINGS BEFORE THE COURT
The applicant appeared at the hearing before me as a litigant in person. An interpreter in the Punjabi language had been requested by the applicant and was provided by the Court at the hearing. The director of the applicant, Mr Husna, said that his English language was proficient so that he did not require the assistance of an interpreter. Nevertheless, the interpreter remained in the courtroom to assist Mr Husna if he so required, which he did not.
Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application, supporting affidavit of the applicant dated 2 June 2020 and the Minister’s written submissions dated 13 May 2025. The applicant did not provide any written submissions.
McKenzie friend
At the hearing, the applicant appeared by its director Mr Husna and requested that his daughter Ms Simran Husna (Ms Husna) be permitted to assist him to present submissions as she had worked in the applicant’s business and was familiar with the applicant’s business. The Minister did not object.
In considering the applicant’s application that Ms Husna be allowed to make submissions, I have considered the decision of Edelman J in Nepal v Minister for Immigration and Border Protection [2015] FCA 366 (Nepal), where his Honour permitted a friend of the appellant to make submissions on his behalf in recognition of the extension of the concept of a Mckenzie friend.
At [14] his Honour said:
The label ‘McKenzie friend’ comes from the decision of the Court of Appeal in England in McKenzie v McKenzie [1970] 3 All ER 1034; [1970] 3 WLR 472 (McKenzie), although the principle is much older. At first instance, in McKenzie, Lloyd-Jones J had refused to allow an Australian barrister to assist a party in family law proceedings by sitting at the bar table and prompting the party. The Court of Appeal quoted from Lord Tenterden CJ in Collier v Hicks (1831) 2 B & Ad 663 669; 109 ER 1290at 1292 that “[a]ny person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice.” Sachs LJ explained that litigants “should be seen to have all available aid on conducting cases in court surroundings, which must of their nature to them seem both difficult and strange”: McKenzie at All ER 1036; WLR 479.
His Honour at [15] of Nepal said (omitting citations):
On occasion, courts have denied an application by a person to make oral submissions (by extension of this concept of a McKenzie friend) on the basis that a McKenzie friend cannot perform the role of an advocate. I doubt whether there is any such absolute prohibition on assistance by making oral submissions. Nevertheless, where a party cannot obtain representation by a lawyer, great care must still be taken before allowing a non-lawyer to speak for the party to legal proceedings. The non-lawyer is not regulated, the non-lawyer has not been trained in the ethical duties of lawyers to the court, and the non-lawyer may do more harm to the party than good. The stance of the Minister in this case, however, recognises the limits and constraints placed upon Mr Nepal in conducting his appeal as well as the apparent ability of Mr Remely.
I considered it appropriate to permit Ms Husna to make submissions on behalf of the applicant given that she was familiar with the applicant’s business and she was the daughter of the director of the applicant.
Submissions made by the applicant
In relation to all the grounds, Ms Husna on behalf of the applicant, contended that there was a genuine need in the farming business for a primary products inspector. Ms Husna said that the nominee had been a very good worker and was dedicated, but after the nomination was refused, the applicant could not find someone else for that position and leased out the farm. However, Ms Husna submitted that if the nomination was approved then the lease over the farm could be brought to an end and the nominee could work in the farming business.
GROUNDS IN THE APPLICATION
The applicant's application for judicial review dated 27 May 2020 and filed on 2 June 2020, contained the following grounds for review (as per original):
1.As per the Migration regulations 1994: r r. 5.19(4)(h)(ii)(F) the Regional Certifying Body) (the RCB) dated 22 August 2016 from Regional Development Australia Mid North Coast was provided which clearly proved the genuine need of position for nominee to work for the business yet the AAT has not taken this advice by the body in consideration hence I seek judicial review for the same.
2.I seek judicial review as nominated position that of Primary Product Inspector has been rejected under r.5.19 of the Migration Regulations 1994 (the Regulations) and would like to support my application with all financials of my business which show financial capacity to nominate the employee for further two years on a full time basis.
3.Clearly in accordance with the legislative instrument IMMI 17/058), the nominated occupation is applicable to the proposed employee in accordance with the specification of the occupation as the tasks are relevant to that of nominated position and it is a major component for the business growth and operational running successfully due to this I would like to lodge judicial review of the refusal by AAT.
Before considering the grounds for review, it is helpful to set out the relevant legislative scheme applicable to the question that the Tribunal was required to consider.
RELEVANT LEGISLATIVE PROVISIONS
In this case, the nomination of Ms Kaur, in the position of primary products inspector, related to a visa in the Direct Entry nomination scheme. Section 140GB of the Act provided as follows:
Section 140GB Minister to approve nominations
(2) The Minister must approve a person’s nomination if:
…
(b) in any case – the prescribed criteria are satisfied.
Relevantly, for the Direct Entry nomination stream, reg 5.19(1) of the Regulations provided that a nominator may apply to the Minister for approval of a nomination of a position in Australia. For the Direct Entry nomination, relevantly reg 5.19(4) sets out the following provisions:
(4) The Minister must, in writing, approve a nomination if:
…
(h) …
(ii) all of the following apply:
(A) the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(E) the business operated by the nominator is located at that place;
(F) a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
For the purposes of sub-regulation 5.19(4)(h)(ii)(F) of the Regulations, schedule A of Migration (IMMI 16/045: Regional Certifying Bodies and Regional Postcodes) Instrument 2016, specified as a relevant body, the Regional Development Australia, Mid North Coast Inc (body).
I will now turn to consider the grounds raised for judicial review.
GROUND 1
Ground 1 raises for consideration, whether the Tribunal properly construed the provisions of reg 5.19(4)(h)(ii)(F) of the Regulations, in relation to how it dealt with Form 1404 from the body, relevant parts which are set out at [6] of this judgment. The applicant argued that for the purposes of reg 5.19(4)(h)(ii)(B) set out at [28] of this judgment, the Tribunal ought to have accepted as conclusive the matters set out by the body in Form 1404, that there was a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, and that the Tribunal had no jurisdiction to separately consider or make a finding as to that matter.
To answer this question, reg 5.19(4) of the Regulations, which I have set out in [28] of this judgment, needs to be construed.
The task of statutory construction must begin with the consideration of the text itself and “[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27). The meaning of the text may require consideration of context, including the general purpose and policy of a provision.
Purpose or policy of the provision
I note that reg 5.19(4) was amended by Migration Amendment Regulation 2012 (No. 2), and repealed the previous drafting of reg 5.19 of the Regulations. The former wording in reg 5.19(4)(e) as follows:
(e) a body specified by Gazette Notice for this paragraph certifies that the employer nomination meets the requirements of paragraphs (a), (b) and (c).
was repealed and substituted with the requirement under sub-regulation 5.19(4)(H)(ii)(F) that:
(F) a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
The Explanatory Statement to the Migration Amendment Regulation 2012 (No. 2) provided as follows:
Subregulation 5.19(4) sets out the requirements for approval of a Direct Entry nomination. To meet the requirements the nominator must identify a need to employ a paid employee in the position for at least two years. Certain other requirements must also be met. …
that a body that is specified by the Minister in an instrument and is located in the same State or Territory as the position has advised the Minister about whether the terms and conditions of employment applicable to the position would be as favourable as those provided to an Australian citizen or permanent resident performing equivalent work in the same location, whether there is a genuine need for the nominator to employ an employee in the position, and whether the position could be filled by an Australian citizen or permanent resident. The advice of the body is a relevant consideration in deciding outcome of the application. (emphasis added)
Relevant case law
The Minister referred me to the decision of Bharaj Construction Pty Ltd v Minister for Immigration & Anor [2016] FCCA 902 (Bharaj). In the case of Bharaj at [62] and [81], the Federal Circuit Court of Australia, considered the pre-July 2012 version of reg 5.19(4) (set out at [34] of this judgment), and discussed the amendments introduced pursuant to Migration Amendment Regulation 2012 (No. 2), (referred to at [34] of this judgment).
In Bharaj at [76], Judge Barnes said as follows:
76. It was for the Minister (or Tribunal) to approve an application for approval of a nominated position as an approved appointment (reg.5.19(1B)). The Minister “must” (subject to an exception not relevant for present purposes) approve an application made on the approved form and accompanied by the prescribed fee if (relevantly) it “meets the requirements of subregulation (4)” (reg.5.19(1C)(a)) but must reject the application if any of those requirements was not met. An approved nomination was, in turn, a criterion for the grant of certain visas, in particular a Class AN Subclass 119 (Regional Sponsored Migration Scheme) visa (see cl.119.22 in Schedule 2 to the Migration Regulations).
…
78.Undoubtedly, reg.5.19(4)(e) required a specified body to provide certification in relation to the matters in reg.5.19(4)(a)-(c) and the Minister (or Tribunal) must be satisfied that such a certification had been provided for reg.5.19(4)(e) to be met. However this was one of eight cumulative requirements.
…
81.The new “substituted” reg.5.19(4) did specify eight separate requirements in a consistent manner (none of which refer to Ministerial satisfaction) and was stated expressly that what was to be provided by a specified body is “advice”. While this undoubtedly puts beyond doubt the construction of reg.5.19(4), it does not follow that previously the regulation had the effect contended for by the Applicant having regard, in particular, to the need to begin the task of statutory construction with consideration of the text itself in the sense considered in Alcan. Further, consistent with PAM3 in relation to both versions of reg.5.19(4), there is nothing in the new version to suggest that it was intended to introduce a significant change in relation to the legal effect of the certification (or advice) to be obtained from a body such as a RCB. Nor was there any suggestion of such indication in any Explanatory Statement.
82.On balance I am satisfied that, despite somewhat infelicitous drafting (perhaps reflecting piecemeal amendments prior to 1 July 2012), it was open to the Tribunal to consider whether the requirements of regs.5.19(4)(a) and (b) were met and in so doing it did not misconstrue and misapply the law or exceed its jurisdiction in the manner contended for in ground 1 of the application. Ground 1 is not made out.
Consideration
I note that in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 (Peko-Wallsend) at [40] to [42], Mason J stated that:
…where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decisionmaker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.
It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.
…in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decisionmaker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty. Ltd. v. MacKellar (42); Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (43); Elliott v. Southwark London Borough Council (44); Pickwell v. Camden London Borough Council (45).
So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.
There is no real question that for the purposes of reg 5.19(4)(h)(ii)(F), the advice of the body, as to the genuine need for a nominator to employ a paid employee, was a relevant consideration in the Peko-Wallsend sense. This is because reg 5.19(4)(h)(ii)(F) expressly requires at item (F), that the body has provided the advice to the Minister. The real question raised by Ground 1, was whether the Minister (and the Tribunal standing in the shoes of the Minister) was bound by the advice of the body or whether it was open to the Tribunal to consider for itself the subject matter of the advice of the body, relevantly, whether there was a genuine need for the nominator to employ a paid employee to work in the position under the nominator's control.
The structure of reg 5.19(4) of the Regulations opens with the words “the Minister must, in writing, approve a nomination if” and relevantly for this matter, reg 5.19(4)(h)(ii) states “all of the following apply” and then references items (A) to (F) as set out in [28] of this judgment. Those words point to a legislative intention that the Minister must look at whether each of the matters set out in items (A) to (F) of reg 5.19(4)(h)(ii) apply, being relevantly in this case, that:
(a)For the purposes of item (B), there was a genuine need for the nominator to employ a paid employee to work in the position under the applicant’s direct control; and
(b)For the purposes of item (F), that a body that is specified by the Minister in an instrument in writing has “advised” the Minister about the matters mentioned, including there is a genuine need for the nominator to employ a paid employee to work in the position under the applicant’s direct control.
Thus, the Tribunal was required to obtain from a body, an advice about whether there was a genuine need for the nominator to employ a paid employee. However, given the existence of item (B) as a standalone item, the Tribunal also needed to consider for itself whether “there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control”. If, as the applicant contended, the Tribunal was bound by the body’s advice in relation to that matter, then there would have been no need to include item (B) as a separate item. Further, the use of the words in reg 5.19(4)(h)(ii) being “all of the following apply” further supports a legislative intention that each of the matters in items (A) to (F) needed to be satisfied.
Further, the ordinary meaning of the word “advised”, used in item (F), as set out in the online Macquarie Dictionary means to be “informed: kept thoroughly advised”, and in the online Oxford Dictionary means “to give guidance or suggestions”. Thus, in applying the ordinary meaning of the word “advised”, for the purposes of reg 5.19(4)(h)(ii)(F) of the Regulations, there is no legislative intention that the Tribunal is bound by the matters stated by the body and what is said by the body is conclusive.
In light of that analysis of the proper construction of the reg 5.19(4)(h)(ii), I turn to consider how the Tribunal dealt with the issue of a genuine need for the nominator to employ a paid employee and the advice from the body contained in Form 1404.
The Tribunal from [56] to [68] of its reasons considered the question of whether there was a genuine need for the applicant to employ a paid employee. In doing so, the Tribunal from [56] to [65] of its reasons looked at the evidence that had been provided largely by Mr Husna as to the genuine need for the position. The Tribunal at [66] and [67] then considered the advice of the body as set out in Form 1404.
First, the Tribunal expressed concerns as to the credibility of the evidence given by Mr Husna in relation to the genuine need for the paid position, being that the evidence did not support the applicant’s claim that the position had been filled in a period of 6 years by one person as set out in the August 2016 letter. The Tribunal found at [58] of its reasons that the August 2016 letter was misleading and was provided to strengthen the applicant’s nomination application of the nominee by suggesting that the position had been filled continuously for a period of 6 years by one individual prior to August 2016 except for the preceding period of 8 months.
Further, the Tribunal noted that the position of the primary products inspector was not filled during Ms Maninder Kaur’s maternity leave, as well as the 8-month period between Mr Monga’s resignation and the commencement of the nominee’s employment ([60] of its reasons).
The Tribunal also noted Mr Husna’s evidence that he performed inspection work during Ms Maninder Kaur’s maternity leave and after Mr Monga’s resignation ([60] of its reasons). At [64] of the Tribunal’s reasons, it noted that Mr Husna’s evidence did not support the claim that he was unable to carry out the inspection duties as he had done in the past.
The Tribunal accepted that Form 1404 met the requirements set out in reg 5.19(4)(h)(ii)(F) of the Regulations ([66] of its reasons). The Tribunal noted at [67] of its reasons that it was required to consider and be satisfied on the matters about which the advice was provided and the advice was relevant, but not conclusive to the Tribunal’s consideration of a genuine need for the nominator, to employ a paid employee. Given my view as to the proper construction of reg 5.19(4)(h)(ii)(F), I find that the Tribunal was correct that the advice from the body was relevant but it was not conclusive for the assessment as to whether there was a genuine need for the nominator to employ a paid employee. Further, as set out in the High Court decision of Peko-Wallsend (referred to at [39] of this judgment), the question of what weight to give to the advice in Form 1404 was a matter for the Tribunal.
At [68] of its reasons, the Tribunal then noted that the genuine need for the position was substantially based on the evidence of Mr Husna. The Tribunal had concerns as to the credibility of Mr Husna’s evidence. The Tribunal noted it had put Mr Husna on notice as to the credibility concerns. The Tribunal concluded that having regard to all the evidence, including Form 1404, it found that the applicant had not established that there was a genuine need for the applicant to employ the nominee as a paid employee. Accordingly, the Tribunal found that the requirement in reg 5.19(4)(ii)(h) of the Regulations was not met.
For the reasons set out in [48] of this judgment, I find the Tribunal was aware it had to have regard to the advice, as to genuine need, in Form 1404. Further, I find that the Tribunal weighed the contents of Form 1404 against the evidence of Mr Husna and ultimately it was open to the Tribunal to conclude that given its credibility concerns as to Mr Husna’s evidence on the relevant issue of genuine need, the applicant had not established that there was a genuine need to employ a paid employee to work in the position under the applicant’s direct control.
Thus, I find that ground 1 does not give rise to a jurisdictional error.
GROUND 2
With regards to ground 2, the applicant seeks to provide further financial information to the Court, which information was not before the Tribunal. As noted at [10] of the Tribunal’s reasons, the applicant provided financial information to the department before the delegate’s decision. Further, as noted at [11] of the Tribunal’s reasons, the applicant also provided financial information to the Tribunal.
The applicant did not expand on why it wished to adduce further financial information to the Court which was not before the Tribunal, but it appeared that it was doing so to argue that on that evidence, the Court should find that the applicant’s business has the financial capacity to nominate the nominee for a further two years on a full-time basis. This Court does not have power to engage in merits review of the application for nomination but must consider the Tribunal’s decision and identify if there was jurisdictional error. Accordingly, ground 2 is rejected as no jurisdictional error is disclosed.
GROUND 3
Ground 3 is directed to the question of whether the applicant satisfied the requirement of reg 5.19(4)(h)(ii)(D) of the Regulations. The ground refers to IMMI 17/058, the full name for which is Migration (IMMI 17/058: Occupations for Subclass 187 visas; Skill, Age and English language for Subclass 186 and Subclass 187 visas) Instrument 2017.
I accept the Minister’s contention that reg 5.19(4)(h)(ii)(D) of the Regulations stipulates, as one of the required cumulative criteria under reg 5.19(4)(h)(ii), the requirement that “the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this subparagraph”. IMMI 17/058 is an instrument made under reg 5.19(4)(h)(ii)(D) and one of the occupations specified in IMMI 17/058 is “Primary Products Inspectors nec” (ANSCO Code 311399, Skill Level 2).
In this case, the Tribunal did not specifically deal with the requirement set out in reg 5.19(4)(h)(ii)(D) of the Regulations, given that it found that the applicant did not satisfy reg 5.19(4)(h)(ii)(B). Given the six criteria within reg 5.19(4)(h)(ii), each of which are cumulative and all of them need to be met, there was no error on the part of the Tribunal in not specifically covering the criteria in reg 5.19(4)(h)(ii)(D). Therefore, ground 3 does not raise a jurisdictional error.
CONCLUSION
As no jurisdictional error is disclosed, the application is dismissed.
COSTS
I will hear the parties on costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 1 July 2025
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