ZZW Health Care Pty Ltd v Minister for Immigration and Citizenship
[2025] FedCFamC2G 698
•9 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ZZW Health Care Pty Ltd v Minister for Immigration and Citizenship [2025] FedCFamC2G 698
File number(s): SYG186/2021 Judgment of: JUDGE COULTHARD Date of judgment: 9 June 2025 Catchwords: MIGRATION – Regional Employer Nomination (Permanent) (subclass 187) visa – judicial review of a decision of the Administrative Appeals Tribunal – procedural fairness – issues arising in relation to the decision under review – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 140GB; 359; 360; 425; 476
Migration Regulations 1994 (Cth) r 5.19
Cases cited: AZAAD & Anor v Minister for Immigration [2010] FCAFC 156; (2010) 189 FCR 494
Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
SZDFZ v Minister for Immigration [2008] FCA 390; (2008) 168 FCR 1
SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870
SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 30 April 2025 Date of hearing: 30 April 2025 Place: Brisbane Counsel for the Applicant: Mr Karp Solicitor for the Applicant: Ms Wang - Juris Cor Legal Solicitor for the First Respondent: Ms Gutman - Minter Ellison Second Respondent: The second respondent filed a submitting appearance, save as to costs ORDERS
SYG186/2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZZW HEALTH CARE PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
20 MAY 20259 JUNE 2025THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Citizenship”.
2.The amended application is dismissed.
3.The applicant is to pay the first respondent’s costs, fixed in the amount of $5,900.
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
THE COURT NOTES THAT: These Orders have been amended pursuant to rule 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
JUDGE COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicant an Employer Nomination for a Permanent Appointment Visa Subclass 187.
These proceedings were originally listed for hearing concurrently with proceedings in SYG 737 of 2021 (“the related proceedings”). Prior to the hearing in these proceedings, the related proceedings were adjourned to a date to be fixed after the decision in these proceedings has been handed down.
BACKGROUND
Application for a visa and the delegate’s decision
On 20 December 2017, ZZW Health Care Pty Ltd trading as Acupuncture & Massage on Erina Fair (“the applicant”/“ZZW Health Care”) applied for an Employer Nomination for a Permanent Appointment Visa Subclass 187 in the Direct Entry stream for the nominated position of Retail Manager (General) (ANZSCO 142111) (“the nomination application”) (Court Book (“CB”) 18-25). The applicant nominated Ms Wenxiu Guo (“Ms Guo”/”the nominee”) for the nominated position. On 26 June 2016, Ms Guo applied for a Regional Sponsor Migration Scheme Subclass 187 visa (“the employee visa application”).
On 16 January 2018, the delegate refused to grant the applicant the visa on the basis that the nominator did not meet the requirements of 5.19(4)(h)(ii)(D) of the Migration Regulations 1994 (Cth) (“the Regulations”) on the basis that the delegate found that the evidence failed to demonstrate that the majority of the tasks that would be performed by the nominee in the position would correspond to the tasks of a Retail Manager (General) as specified by the Minister in an instrument in writing. The delegate also found that the applicant did not meet regulation 5.19(4)(h)(i) for the same reason (CB 122-131) (“delegate’s decision”). The decision of the delegate in respect of the employee visa application is the subject of the related proceedings.
Application for review to the Administrative Appeals Tribunal
On 31 January 2018, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 132-133). The applicant appointed a registered migration agent to act as its representative and authorised recipient (CB 133).
On 3 July 2020, the Tribunal wrote to the applicant inviting it to provide information by 17 July 2020 (“the s 359 request”). The Tribunal stated that as the application for nomination was made under the Direct Entry nomination stream, it required updated and current information addressing the criteria in regulations 5.19(2) and (4) and gave examples of the type of information the applicant should provide including whether the nominee will be employed on a full-time basis for at least two years (CB 145-149). The time for responding to the s 359 request was later extended to 14 August 2020 (CB 154).
On 14 August 2020, the applicant provided the Tribunal with documents in response to the s 359 request (CB 155-243). The documents provided included the employment contract between ZZW Health Care and the nominee and the job description; an organisation chart for ZZW Health Care; and a statement by Mr Wang on behalf of ZZW Health Care titled “genuine position explanation letter” and dated 21 July 2020.
On 14 September 2020, the Tribunal invited the applicant to attend a hearing on 29 September 2020 to give evidence and present arguments relating to the issues arising in its case, stating that it was unable to make a favourable decision based on the information before it alone (CB 248-250). The invitation stated that the decision made by the department to refuse to the grant the visa should set out the reasons why the applicant did not meet the criteria and said that regard should be had to those reasons in providing documents and preparing for the hearing.
On 25 September 2020, the applicant provided further documents to the Tribunal in support of its application for review (CB 268-281). The documents included an Income Statement/PAYG Summary for the period 2018 to 2020 for the nominee.
On 29 September 2020, the applicant attended the hearing (“the September hearing”). The applicant was represented by Mr Wang. The applicant was assisted by its migration agent. Ms Guo attended the hearing as a witness and gave evidence about her role (CB 282-285). The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages (CB 282). The applicant was given the opportunity to provide further information in writing by 13 October 2020 (CB 284).
On 13 October 2020, the applicant provided a statement by Mr Wang affirming that the nominee performs the tasks in the nominated position and setting out the importance of the nominated position to the applicant; statutory declarations by the applicant’s solicitor, accountant, customers and staff members about the role of the nominee; and emails and letters said to demonstrate the nominee’s competency (CB 286-334).
On 2 November 2020, the Tribunal invited the applicant to attend a further hearing on 18 November 2020 to give evidence and present arguments relating to the issues arising in its case, stating that it was unable to make a favourable decision based on the information before it alone (CB 337-339). The invitation stated that the decision made by the department to refuse to the grant the visa should set out the reasons why the applicant did not meet the criteria and said that regard should be had to those reasons in providing documents and preparing for the hearing. The letter did not otherwise explain the reason for a second hearing.
The applicant’s migration agent wrote to the Tribunal stating that the hearing had been held on 29 September 2020 and asking the Tribunal to advise why a further hearing had been arranged (CB 344). The Tribunal responded on 2 November 2020 explaining that “the member has deemed that a second hearing is necessary” (CB 346).
On 17 November 2020, the applicant provided additional documents in support of the application for review (CB 353-390). The documents included emails between the applicant and Stockland regarding the terms of a prospective lease of premises at Stockland Piccadilly Shopping Centre and between the applicant and Westfield Kotara about a prospective lease at Westfield Kotara.
On 18 November 2020, the applicant attended the hearing (“the November hearing”). The applicant was represented by Mr Wang. The applicant was assisted by its migration agent. Ms Guo attended the hearing as a witness but did not give evidence (CB 391-393). The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages (CB 391). The applicant was given the opportunity to provide further information in writing by 2 December 2020 which time was later extended to 16 December 2020 (CB 393, 395-396, 397).
On 16 December 2020, the applicant provided further documents in support of its application for review (CB 398-433). The documents included a business plan for ZZW Health Care dated December 2020; and undated (no year is specified) emails between the nominee and others regarding leasing inquiries for the applicant’s business.
On 4 January 2021, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 440-452).
The Tribunal’s Decision
The Tribunal identified that the issue on review was whether the applicant meets the requirements set out in regulation 5.19(4) for approval of a Regional Sponsored Migration Scheme - visa Subclass 187 in the direct entry stream for the position of Retail Manager (General) ANZSCO 142111 (“the position”) in favour of Wenxiu Guo (the nominee) ([8]-[9]).
The Tribunal then turned to set out the evidence at the September hearing. The Tribunal identified that the relevant job description for the position was that in the employment contract dated 13 July 2020 (CB 202-213) and took Mr Wang through the ANZSCO tasks of a Retail Manager discussing with him each of the tasks undertaken by the nominee ([18]-[22]) and his evidence as to why the applicant’s business needed the nominated position and his evidence as to how the nominee had helped the business in various areas ([23]-[27]).
The Tribunal then set out the evidence at the November hearing and Mr Wang’s answers to the Tribunal’s questions as follows (in summary):
(a)The nominee had been working for the business since 2015 ([29]);
(b)In response to the Tribunal’s question as to whether the nominee undertakes all the duties in the job description attached to the employment contract, Mr Wang said that she did a really good job to fulfill all the requirements ([29]);
(c)The Tribunal asked if the position is still 40 hours per week on $46,000. Mr Wang said that there was a new contract from 13 July 2020 and the salary is $57,566 plus superannuation ([29]);
(d)The Tribunal asked Mr Wang about the PAYG payment summaries which showed the nominee was paid only half of the nominated salary and asked if the nominee was working part-time because the pay was considerably less than the amount in the employment contract. The Tribunal said that if it considered this it may conclude that there is not a genuine need for the full-time position of retail manager since Mr Wang had been satisfied with the position being filled only part-time and all the duties in the job description had been undertaken by the nominee in that part-time week ([30]);
(e)Mr Wang asked to respond in the hearing and to provide a written response. At the hearing, Mr Wang said that salary in the new contract is $57,000 or so and this is the salary the nominee will receive if the visa is granted, and she can then work legally. Mr Wang explained that the nominee is presently on a bridging visa E and can only lawfully work 20 hours per week ([31]);
(f)The Tribunal put to Mr Wang that for four years he has accepted a part-time position, and it may conclude that there is not a genuine need to employ a paid employee to work in the full-time position of retail manager under the nominator's direct control because he has stated that all the duties were undertaken ([32]);
(g)Mr Wang chose to respond in the hearing. He said he does not agree that it is not a full-time job because his business is expanding and the only thing stopping them expanding is the visa not being granted. He said the reason that he agrees to continue to sponsor the nominee is because she does a brilliant job and her efficiency in managing her tasks and duties and that she can finish all of the full-time tasks and manage her time very well ([33]); that she worked five days and four hours per day; his business was one of the few lucky businesses well positioned during the pandemic; he wants to sponsor her and keep her as a valued member of the business; she is an important staff member to expand the business ([34]); the nominee has in-depth experience in the industry and that will help with the expansion in large shopping centres such as Westfield and branding for multi stores and adding traditional medicine and more health treatments and that her experience will be invaluable ([35]);
(h)Mr Wang referred the Tribunal to documents he had submitted before the hearing showing the expansion of the business into an integrated service provider which they developed during the pandemic and is a new model of how people respond to health needs. He said they are negotiating with Lendlease to set up integrated clinics and for package deals for therapies. He said they will build on their experience of the industry and the data base of client needs and the space to develop further ([36]);
(i)Mr Wang said that he is a representative of many groups and has many roles to fill and needs a manager to help him run all those businesses ([36]);
(j)Mr Wang said that the reason they managed so well during the pandemic was due to the nominee's management and the systems she has developed which could be replicated in new stores ([37]);
(k)Mr Wang said that he would submit a business plan detailing this concept ([37]).
The Tribunal then turned to consider whether it was satisfied there was a genuine need for a full-time position as Retail Manager for at least two years ([38]). The Tribunal said that it had considered the evidence at hearing and the documents submitted regarding the applicant’s expansion plans and Mr Wang’s claim that he needs the nominee as a full-time employee to advance these expansion plans ([38]).
The Tribunal referred to the documents which the applicant provided to the Tribunal after the November hearing regarding the applicant’s expansion plans ([38]). The Tribunal said that the business plan gives an overview of the health needs and growth prospects in Australia and proposes investing $1M to $1.5M in each of three new clinics with 30 to 40 employees in each and projected total revenue of $3,000,000 for the three clinics; proposes expanding their services to include “physiotherapy, orthopaedics”; and references the applicant’s discussion and emails with the three leasing executives ([39]).
The Tribunal noted that the SWOT analysis states that “the expansion of the company will require the nominee to work full time with long term commitment, so it is crucial to get a positive outcome of the nomination application for her Store Manager position”. The Tribunal further noted that an organisation chart shows the Director; nominee as Store Manager and under them both, three clinics with seniors and juniors to be hired for each and a draft financial projection shows total income of $3.63M in FY 2024 for a profit before tax of $1.7M ([40]).
The Tribunal then went on to say that it had several concerns over the business plan and expansion plans as follows ([41]):
(a)Services such as physiotherapy and orthopaedics are professions, and the latter requires registration with the Royal Australasian College of Surgeons and the Australian Orthopaedic Association. There are no details provided on whether any attempts have been made to recruit these highly skilled professionals nor how their medical services would integrate within a massage and Chinese medicine business. Both professions require specialised equipment and consulting rooms which meet strict clinical guidelines. There is scant detail about whether these matters have been given consideration. Medicare provider numbers are required for both professions and there is scant detail about whether the applicant will apply for new provider numbers or attempt to recruit specialists with their own provider numbers ([42]);
(b)The draft financial projections provide no details on how the income projections nor the expenses were calculated. They seem to be figures that were just placed in the table without any evidence to show how they were calculated or how they would be achieved ([43]).
(c)The email exchanges are brief and plainly exploratory with the applicant giving a brief overview of their plans and requests to meet and discuss but no further commitment such as a signed lease agreement. There is scant evidence of financial capacity to invest in this business expansion or evidence of attempts to secure loans from financial institutions ([44]).
The Tribunal concluded that it found that the business expansion plans are aspirational and speculative, and the Tribunal cannot accept them as the basis of an argument that there is a genuine need for a full-time retail manager. The Tribunal said that it placed little weight on them ([45]).
The Tribunal stated that it considers that a "genuine need" for the nominator to employ a paid employee to work in the position would be an authentic requirement to employ a paid employee because it is essential or very important rather than just desirable ([47]).
The Tribunal found that the applicant had not made attempts to fill the position on a full-time basis since the nominee was employed in February 2016 and that she has only been able to work 20 hours per week on her bridging visa. The Tribunal said that there is scant evidence, in the intervening four to nearly five years since February 2016 of further advertisements for a full-time employee to fill the position of Retail Manager ([48]) and that at the same time the applicant states the nominee does a brilliant job and it is her efficiency in managing her tasks and her time and duties that enable her to finish all their full-time tasks ([49]).
The Tribunal said that it considered that if it were essential or very important to the applicant to require the full-time position of Retail Manager he would have made further significant efforts, such as re-advertising the position to fill the full-time position and he has not done so, rather he has permitted the position to be filled on a part- time basis for nearly five years. The Tribunal said that the applicant had not provided evidence that anyone else assists the nominee to ensure the full-time tasks are completed and he maintains that he has other commitments and cannot himself be involved in the day to day running of the business. The Tribunal said that whilst it accepts the applicant's statements that the nominee is very efficient and has good time management skills it is not plausible that her efficiency is such that she is able to complete all the tasks of a 38-hour week in 20 hours ([50]). The Tribunal said that this is compounded by the fact that the applicant states the full-time tasks are all efficiently finished with a brilliant result; even though the nominee has only been able to work 20 hours per week for nearly five years. The Tribunal acknowledged that the applicant values the nominee and desires her abilities, but this does not go to whether it is essential or very important to employ a paid employee in the full-time position of Retail Manager ([51]).
The Tribunal said that the only reasonable conclusion the Tribunal can reach is that the applicant leaves the position filled part time because he is satisfied that a brilliant job is done and all the duties finished because, it is in reality only a part-time position and there is not a genuine need for the full-time position of Retail Manager as required by regulation 5.19(4)(d)(i) ([52]).
The Tribunal concluded that there was not a genuine need for the applicant to employ a paid employee to work in the position of Retail Manager under the nominator's direct control because the position is only part-time, 20 hours per week position ([53]) and that accordingly, regulation 5.19(4)(h)(ii)(B) were not met ([54]) and it was not satisfied that the applicant meets the requirements of regulation 5.19(4) ([55]). The Tribunal affirmed the decision under review to refuse the nomination ([58]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Migration Act 1958 (Cth) (“the Act”) by an application filed in the then Federal Circuit Court on 5 February 2021.
Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which it seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
On 8 April 2025, the applicant filed an amended application. The applicant also filed an affidavit affirmed by Lu Tang (a NAATI accredited translator and interpreter in the Mandarin and English Languages). The affidavit annexes a copy of a transcript in both the Mandarin and English languages of the audio recording of the September hearing and the November hearing. The applicant’s counsel informed the Court that only the English translation of the Tribunal’s hearings is relied upon in these proceedings.
The material before the Court was the amended application, the affidavit of Lu Tang annexing the transcript of the Tribunal’s hearings, the first respondent’s response, the applicant’s written submissions, the first respondent’s written submissions and the Court Book. The Court Book was made an exhibit in the proceedings.
CONSIDERATION
For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The ground of review set out in the amended application is (without alteration but excluding underlining and text that was struck through):
The Tribunal fell into jurisdictional error by failing to comply with the requirements of s. 360 of the Migration Act as that provision existed at the time of the Tribunal decision.
Particulars
(a) Towards the end of the second Tribunal hearing, starting at page 60 of 69 of the transcript of the Tribunal hearing, the applicant’s director, Mr Wang, stated that the nominee, Ms Guo, was needed to be employed full time because he had plans to expand the applicant’s business.
(b) Those plans were elaborated on in written submissions made post hearing (starting at CB 400).
(c) The Tribunal found that the applicant’s business expansion plans were “aspirational and speculative” and found that it could not accept them as the basis for an argument that there was a genuine need for a full time retail manager (at CB 451 [45].
(d) Whether there were serious plans or intentions for the applicant to expand its business was an “issue” on the review within the meaning of s. 360 of the Migration Act as it then existed.
(e) In circumstances where the Tribunal considered that the applicant’s expansion plans may be open to doubt, it had a duty, pursuant to s. 360, to ask the applicant to expand upon that aspect of its account and ask the applicant to explain why the account should be accepted.
(f) The Tribunal failed to do this, and thus acted in breach of s. 360 of the Migration Act.
As can be seen, the amended application raises only one ground of review. It concerns the findings the Tribunal made with respect to the business plan which the applicant provided to the Tribunal after the November hearing. The applicant contends that the Tribunal failed to afford it procedural fairness in breach of s 360 of the Act because it did not give the applicant an opportunity to expand upon its account as to its plans or intentions to expand the business and explain to the Tribunal why that account should be accepted.
Section 360: the issues arising in relation to the decision under review
At the time of the Tribunal’s decision, section 360 of the Act provided:
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
A person who has applied to be an approved work sponsor may nominate an applicant or proposed applicant for a visa. The Minister (and Tribunal) must approve a person’s nomination if, relevantly, the prescribed criteria are met (s 140GB of the Act). The relevant criteria were set out in regulation 5.19. All the criteria must be met. Relevantly to these proceedings, regulation 5.19(4)(h)(ii)(B) required that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. In respect of the position, regulation 5.19(4)(d)(i) required that the employee will be employed on a full-time basis in the position for two years.
It is not in contention that the Tribunal found that there was not a genuine need for the applicant to employ a paid employee to work in the position of Retail Manager under the nominator’s direct control because the position was only a part-time position (Decision [53]) and that the Tribunal accordingly found that regulation 5.19(4)(h)(ii)B) was not met (Decision [54]).
The issue before the Court is whether the Tribunal complied with its obligation in s 360 to put the applicant on notice of the issues arising in relation to the decision under review. Whether or not it did so turns upon what the issue on review was and whether the applicant was notified of that issue such as to give it the opportunity to give evidence and present arguments. The applicant contends that the issue was whether its plans for expansion were genuine, the Tribunal having concluded that the applicant’s business expansion plans were aspirational and speculative and that it did not accept them as the basis for an argument that there is a genuine need for a full-time retail manager (Decision [45]). The applicant submits that this finding required the Tribunal to first give it an opportunity to make further written or oral submissions as to why those plans were genuine. The first respondent contends that the issue under review was whether the criteria in 5.19(4)(h)(ii)(B) was met and that the applicant had been put on notice that this was an issue under review.
It is useful to first set out the relevant legal principles starting with the High Court’s decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (“SZBEL”) (as to the same requirement in the then s 425 of the Act with respect to review of applications for protection visas) from which the following principles can be distilled:
(a)The issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The language “issues arising in relation to the decision under review” is more particular (at [34]);
(b)The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker but also to the fact that the Tribunal is to review the particular decision, for which the decision-maker will have given reasons (at [34]);
(c)The Tribunal is to identify the issues that arise in relation to the decision ([35]);
(d)If the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising relation to the decision under review” (at [35]);
(e)The point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision (at [35]);
(f)Unless some additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant (at [35]);
(g)The invitation to an applicant to appear before the Tribunal is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, the review commences with the applicant knowing that the Tribunal is not persuaded by the material already before it to decide the review in the applicant’s favour. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to the decision (at [36]).
The High Court went on to make three further general points:
(a)There may be cases in which the Tribunal’s statements or questions during a hearing sufficiently indicate to the applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. The proceedings are not adversarial, and the Tribunal is not to adopt the position of a contradictor. But, where, there are specific aspects of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should not be accepted (at [47]);
(b)The rules of natural justice do not require decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision (at [48]);
(c)Even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified in Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 in which the Full Court of the Federal Court said that where the exercise of a statutory power attracts the requirement for procedural fairness the entitlement to put information and submissions extends to require the decision-maker to put to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made and advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material (per Northrop, Miles and French JJ at [591]-[592]) (at [47]).
The applicant’s counsel took the Court to two further authorities: SZDFZ v Minister for Immigration (2009) 168 FCR 1 (“SZDFZ”) and AZAAD & Anor v Minister for Immigration (2010) 189 FCR 494 (“AZAAD”). In SZDFZ (also concerned with the then s 425 of the Act) Flick J said (at [22]) that in the context of the appeal before his Honour, there may be many ways in which the “issues” could be described but cautioned that an inflexible attempt to define those “issues” in a particular way may tend to divert attention from the principal concern of s 425, namely to ensure that an applicant is given a meaningful opportunity to be heard. His Honour went on to say that the phrase “the issues arising in relation to the decision under review” is not to be narrowly construed and that the term “issues” is of wide import and that furthermore the intent of s 425(1) to not narrowly confine the invitation is further reinforced by the use of the phrases “relating to” and “in relation to”. In AZAAD, Besanko J said (at [62]) that an applicant for review is entitled to be advised of the issues on the review and be given the opportunity to expand on his or her evidence and explain why their account should be accepted. His Honour went on to say that this might have been done in one of two ways. First, the Tribunal might, at the outset of the hearing, have advised the appellants that the key elements of the first appellant’s account were in issue and that they should give whatever evidence they wish to in support of their claims or, in the alternative, the Tribunal might, through the question and answer approach have asked questions which enabled the first appellant to expand on her evidence with respect to key events (at [62]-[63]). Reeves J after considering SZBEL and SZDFZ, said that the basic principles are that under s 425 of the Act, procedural fairness requires that an applicant has to be provided with the opportunity to give evidence and present arguments about the central and determinative issues on the review. This requires the Tribunal to identify those issues to the applicant. Unless some contrary indication is given those issues will be the issues that the previous decision maker identified as being determinative against the applicant ([102]). His Honour then went on to say (at [103]):
103Such a contrary indication may, however, be given in any number of ways. It may be apparent from the fact the Tribunal had decided it could not decide the application on the materials before it and had invited the applicant to a hearing. Or, it may be apparent from the nature of the Tribunal’s questioning that everything the applicant says in support of his or her application is in issue. In this regard, the Tribunal does not have to go as far as saying to the applicant that he or she is lying, or may not be accepted as truthful, or is exaggerating, nor does the Tribunal have to give a running commentary on its reactions to, or thoughts about, the evidence the applicant is giving, so long as it makes it clear from its questioning that the whole of the applicant’s claims are in issue. On the other hand, the Tribunal may consider that only specific aspects of the applicant’s account are questionable, or open to doubt. In that event the Tribunal must ask the applicant to expand upon those specific aspects and to explain why his or her account should be accepted.
Having summarised the relevant principles, it is not understood that there is any disagreement between the parties as to those principles. The disagreement is as to how those principles apply to the particular circumstances of this case.
As set out in the application, the applicant contends that whether there were serious plans or intentions for the applicant to expand its business was an issue on review within the meaning of s 360 and that in circumstances where the Tribunal considered that the applicant’s expansion plans may be open to doubt, it had a duty, pursuant to s 360, to ask the applicant to expand upon that aspect of its account and ask the applicant to explain why the account should be accepted. The applicant submitted that the Tribunal should have done so by holding another hearing or giving the applicant an opportunity to make further submissions.
The first respondent contends that the dispositive issue was whether regulation 5.19(4)(h)(2)(i)(B) was satisfied and that the applicant was notified that this was an issue at the November hearing.
The issues arising in relation to the decision under review in this matter
The starting point for determining the issues arising in relation to the decision under review is the reasons given by the delegate. As noted above, the delegate decided that the nominator did not meet the requirements of regulations 5.19(4)(h)(ii)(D) and 5.19(4)(h)(i) on the basis that the delegate found that the evidence failed to demonstrate that the majority of the tasks that would be performed by the nominee in the position would correspond to the tasks of a Retail Manager (General) as specified by the Minister in an instrument in writing.
The Tribunal invited the applicant to the September hearing stating in the invitation that it was unable to make a favourable decision based on the information before it alone. The invitation referred the applicant to the delegate’s decision, stating that the decision should set out the reasons why the applicant did not meet the criteria for the visa and that the applicant should have regard to those reasons in providing documents and preparing for the hearing (CB 248-250). It cannot be in contention that at the point the applicant was on notice that the issue arising in relation to the decision under review was whether it met the requirements of regulations 5.19(4)(h)(ii)(D) and 5.19(4)(h)(i).
At the September hearing, the Tribunal took the applicant through each of the requirements in regulation 5.19(4). In particular, the Tribunal directed the applicant’s attention to regulation 5.19(4)(h)(ii)(B) and asked the applicant to explain why there was a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s direct control. Mr Wang gave evidence in response to that question (Transcript September hearing p. 19 lines 498-509; p. 31 lines 868-871; p. 32 – 34 lines 1-949). The applicant’s migration agent also made a submission as to the need to engage Ms Guo as a store manager (Transcript September hearing p. 35 lines 979-1004; p. 36 lines 1005-1020). Otherwise, the Tribunal also focussed its questioning on the tasks performed by the nominee, Ms Guo as set out in the job description provided by the applicant to the Tribunal and whether those tasks aligned with the nominated position. Mr Wang responded to the Tribunal’s questions. The applicant’s migration agent also made a submission that the nominee’s job description meets the ANZSCO description (Transcript of September hearing p. 20 lines 537-549; p. 21 - 34). The Tribunal explained to the applicant that regulation 5.19(4)(h)(ii)(D) was the original reason why the delegate had refused the employer nomination (Transcript of September hearing p. 20, lines 537-538).
The Court is of the view that, having regard to the way in which the September hearing was conducted, the Tribunal had notified the applicant – through its specific reference to the regulation and the questions asked – that whether the requirement in 5.19(4)(h)(ii)(B) was met was an issue in arising in relation to the decision under review and that the issues under review were not limited to the reasons upon which the delegate had refused to grant the employer nomination.
At the September hearing, Mr Wang gave evidence that Ms Guo had been employed permanently in the position since February 2016 (Transcript September hearing p. 31 lines 868-871). The Tribunal did not ask the applicant any questions directed to whether the nominee will be employed on a full-time basis in the position for at least two years (being the requirement in regulation 5.19(4)(d)(i)) other than to ask the applicant to confirm (which Mr Wang did) that the employee will be employed on a full-time basis for two years (Transcript September hearing p. 13 lines 320-332). This became a line of enquiry by the Tribunal in the November hearing arising from the Income Statement/PAYG Summary for Ms Guo for the period 2018 to 2020 (“the taxation records”) which the applicant had provided to the Tribunal a few days prior to the September hearing.
It cannot be in dispute that the Tribunal did not tell the applicant prior to the hearing why it was necessary for there to be a second hearing other than to say that the member deemed a second hearing was necessary (CB 346). However, at the November hearing, the Tribunal expressly raised with the applicant that having regard to the nominee’s income (as disclosed in the taxation records) it may find that because Ms Guo had only been working approximately half the time, that is not full-time, and therefore it may not be satisfied that regulation 5.19(4)(h)(ii)(B) was satisfied, that is, that there is not a genuine need for the nominator to employ a paid employee to work in a position under the nominator’s direction control which is a full-time position (Transcript November hearing p. 55 lines 301-308; p. 59 lines 400-406). The Tribunal explained to the applicant that it was putting the information to the applicant pursuant to s 359AA of the Act. The applicant’s counsel suggested in oral submissions that compliance with the obligation under s 359AA of the Act could not discharge the Tribunal’s obligations under s 360 and referred the Court to SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870 at [59] (“SZIOZ”) and SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 at [56]. The Court does not accept that those cases stand for that proposition, noting that in SZIOZ at [59], Besanko J found that a letter sent after the Tribunal hearing could not satisfy the obligation in s 425 of the Act. The issue remains whether the applicant was on notice of the issues arising in relation to the decision under review so that it had an opportunity to give evidence and present arguments on those issues.
The Court is satisfied, having read the transcript of the November hearing, that the applicant was on notice that whether the requirement in regulation 5.19(4)(h)(ii)(B) was satisfied was an issue arising in relation to the decision under review and was so aware in the specific manner raised by the Tribunal. Mr Wang told the Tribunal that he wanted an opportunity to both respond during the hearing and the opportunity to respond in writing (Transcript November hearing p. 57 lines 344-345). Mr Wang gave evidence and presented arguments at the hearing. The thrust of his evidence and arguments was that he wanted to expand Ms Guo’s responsibilities because the business is expanding and has plans “in the pipeline” (Transcript November hearing p. 60 lines 427-429; p. 61 lines 457-461). Mr Wang gave evidence about those plans and referred to documents provided to the Tribunal “right before the hearing” which he described as the blueprints of the extension plans (Transcript November hearing p. 62 63; p. 64 lines 518-521; p. 66 lines 570-573, 584-585, 590-593). Those documents were the various emails about lease terms between the applicant and Stockland Picadilly Shopping Centre and Westfield Kotara (CB 367-390). Mr Wang concluded his evidence by stating that he would provide in writing, after the hearing, a more detailed business plan.
After the hearing, the applicant provided to the Tribunal a document described as the Business Plan of ZZW Health Care Pty Ltd prepared in December 2020 (CB 400-412) and various emails regarding leasing enquiries (CB 413-432).
In its reasons for decision, the Tribunal referred to the applicant’s expansion plans stating that it had carefully considered the evidence at the hearing and the documents submitted regarding the applicant’s expansion plans (Decision at [38]), that it had the concerns over the business plan and expansion plans and articulated those concerns (Decision at [42]-[44]). The Tribunal concluded that:
45The Tribunal finds that the business expansion plans are aspirational and speculative, and the Tribunal cannot accept them as the basis of an argument that there is a genuine need for a full-time retail manager. As such the Tribunal places little weight on them.
The applicant’s submission is that the genuineness of the expansion plans was an issue arising in relation to the decision under review.
The Court agrees with the applicant’s submission that the phrase “issues arising in relation to the decision under review” is not to be narrowly construed (relying upon SZDFZ at [23]). However, the Court does not agree that the genuineness of the applicant’s expansion plans was an issue arising in relation to the decision under review.
The Tribunal did not find the plans were not “genuine”. The Tribunal considered the plans but found them to be speculative and aspirational for the reasons it gave and said that therefore it placed little weight on them. In any event, the issue was whether there was a genuine need to employ the nominee in the position which was that of full-time retail manager. The relevant issue was not the genuineness of those plans but whether the requirement in regulation 5.19(4)(h)(ii)(B) was met. That required the Tribunal to give the applicant notice of that issue and to do so in a way which met the principal concern of s 360 namely, to ensure that the applicant was given a meaningful opportunity to be heard (SZDFZ at [22]). The Tribunal did that by squarely raising the issue with the applicant at the November hearing and explaining to the applicant why it was concerned that the requirement might not be met. The applicant was given an opportunity at the hearing to give evidence and present arguments. In doing so, the applicant told the Tribunal about the proposed expansion plans and said that after the hearing it would provide the Tribunal with a detailed business plan. It was for the applicant, in providing that plan, to make any further submission it wished to make about that plan for expansion. It was not for the Tribunal to adopt the position of contradictor in relation to the evidence the applicant chose to provide to the Tribunal (SZBEL at [47]) or to give to the applicant a commentary on what it thought about the evidence that was given so that the applicant could seek an opportunity to criticise the Tribunal’s assessment of that evidence (SZBEL [48]).
No jurisdictional error is established.
CONCLUSION
For the reasons set out above, the amended application is dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated:
20 May 20259 June 2025
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