XIAO v Minister for Immigration

In this matter before Judge Manousaridis, the applicants sought judicial review of a decision made by the Administrative Appeals Tribunal. The central dispute concerned whether the Tribunal had genuinely considered an employment contract presented by the applicants as evidence. The applicants contended that despite the Tribunal's reference to the contract, it had failed to engage in a meaningful assessment of its enforceability, relying on principles established in *NAJT v Minister for Immigration and Multicultural and Indigenous Affairs*.

The primary legal issue before the Court was whether the Tribunal had discharged its obligation to "have regard" to the employment contract. This required the Court to determine if the Tribunal had engaged in an "active intellectual process" in considering the contract, or if it had merely been aware of its existence without genuine consideration, as articulated in *Singh v Minister for Immigration & Multicultural Affairs*. The applicants argued that the Tribunal's silence on its consideration of the contract indicated a lack of genuine engagement.

The Minister submitted that the Tribunal had indeed considered the genuineness of the employment contract. Judge Manousaridis identified three difficulties with the applicants' argument. Firstly, the absence of a finding that the contract was a sham did not automatically mean the Tribunal was satisfied it was genuine; the Tribunal could have simply lacked satisfaction either way. Secondly, the Tribunal had actively considered the contract's genuineness by comparing the stipulated salary to the applicant's previous earnings, Australian statistics, and the Nominator's wage payments, ultimately concluding it was not satisfied the Nominator was willing or able to pay the contractual amount. Thirdly, even if the Tribunal had been satisfied of the Nominator's belief in paying the contractual amount, it had still considered the Nominator's ability to do so based on historical wage data. Consequently, the Court found that the Tribunal had genuinely considered the employment contract.