Alnoor Logistics Pty Ltd v Minister for Immigration and Citizenship [2026] FedCFamC2G 197

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This is an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act) of a decision of the second respondent (Tribunal) made 20 April 2020 to affirm a decision of a delegate of the first respondent (Minister) made 19 July 2017 to refuse the approval of an employer nomination by the applicant pursuant to reg 5.19 of the Migration Regulations 1994 (Cth) (Regulations). The applicant sought approval for the purpose of nominating an employee for an Employer Nomination Scheme (Subclass 186) visa.
2. The hearing of the application for review was heard at the same time as an application by the nominated employee, Mr Muhammad Nawaz, in proceeding MLG 1992 of 2020 where Mr Nawaz seeks to review a decision of the Tribunal made 7 May 2020 affirming a decision of a delegate of the Minister made 6 September 2017 to refuse to grant Mr Nawaz a Subclass 186 visa (related proceeding).
3. The parties agree that the outcome of this application for judicial review will determine the outcome of the related proceeding and that if the application for review by the applicant is unsuccessful then the application for judicial review in the related proceeding must also fail.
4. References in these reasons to 'CB' pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court without objection, and designated exhibit 'R1'.

1. The applicant conducts a licensed taxi service business in Rosehill, New South Wales. It was formerly known as JAS Taxi Service Pty Limited.
2. On 23 January 2017, the applicant proposed to employ Mr Nawaz as a 'Fleet Manager' for a term of four years at an annual salary of $65,000.00 plus compulsory superannuation. The term of employment was to commence 'upon grant of your 186 visa' (CB 77-81). Mr Nawaz had previously been employed by the applicant from about July 2011 and had a contract of employment on similar terms from 2015 until January 2017 (CB 424-7).
3. On 23 February 2017, the applicant applied for approval from the Minister for an 'Employer Nomination for a Permanent Appointment' in relation to Mr Nawaz's position (CB 1- 122).
4. On 19 July 2017, a delegate of the Minister refused to approve the nomination on the basis that the applicant did not satisfy cl 5.19(3) of the Regulations. The delegate found that the applicant did not demonstrate that it had the financial capacity to provide the nominee (Mr Nawaz) with full-time employment for at least two years (CB 126--134). The applicant's business operated at a significant trading loss during the financial years ending 30 June 2015 and 30 June 2016 (CB 110). Liabilities of the business also exceeded net assets (CB 111). The last recorded profit of the business was in 2012 (CB 120).
5. On 2 August 2017, the applicant applied to the Tribunal to review the delegate's decision (CB 135-136).
6. On 30 January 2020, the Tribunal invited the applicant to provide further information in accordance with s 359 of the Act (CB 141-5).
7. On 12 February 2020, the applicant's solicitor provided further up to date financial and other information (CB 146-370). This included a submission addressing satisfaction of the Regulations (CB 148-150). The business of the applicant continued to show trading losses for the 2018 and 2019 financial years ending 30 June (CB 173).
8. On 12 March 2020, the applicant was invited to attend a hearing in person (CB 371-4). This was amended to be a hearing conducted by telephone as a result of the COVID-19 restrictions (CB 380-3).
9. On 8 April 2020, the applicant submitted further documents in support of the application for review and the financial viability of the applicant's business, as well as the sustainability of the employment of Mr Nawaz as a Fleet Manager (CB 389-427)
10. The hearing before the Tribunal proceeded by telephone on 15 April 2020. Mr Zakria, the sole director of the applicant, appeared and gave evidence. The Tribunal also received evidence from the applicant's accountant Mr Puljic and Mr Nawaz. The applicant was represented by a solicitor, Ms Elizabeth Wisser (CB 429-434)
11. Following the hearing, the applicant submitted further evidence including a further submission (CB 435-8).
12. On 21 April 2020, the Tribunal provided written reasons for decision dated 20 April 2020 (CB 439-450). In the decision record, the Tribunal affirmed the delegate's decision to refuse the nomination (Decision).

1. In the Decision, the Tribunal recorded the procedural history of the application and referred to the Regulations at the time of the delegate's decision on 19 July 2017. The Regulations applicable as at 20 April 2020 (when the Decision was made) were in a different form to the Regulations in 2017. Nevertheless, the provision applied by both the delegate and the Tribunal remained substantially the same. In the interim, regs 5.19(3)(c)(i) and (ii) and (d)(i) and (ii) had been removed and replaced with regs 5.19(5)(e), (f), (l) and (m) of the Regulations with minor amendment to transitional timing criteria and periods of employment for former employees holding Subclass 457 visas.
2. The Tribunal found that the application complied with reg 5.19(3)(a) of the Regulations (CB 444 [11]).
3. The Tribunal then considered if the application complied with the criteria in reg 5.19(3)(d) (CB 444 [15]). This was an error as noted above because the Regulations had changed and should have been a reference to regs 5.19(5)(l) and (m) of the Regulations.
4. The Tribunal then considered the evidence before the delegate and the further evidence submitted to the Tribunal before the hearing, at the hearing and after the hearing (CB 444-7 [17]-[24]).
5. The Tribunal accepted that the losses experienced by the applicant were reducing from the 'apparent peak loss of 2016' however the business of the applicant continued to operate at a loss, which may adversely impact the capacity of the applicant's business to employ Mr Nawaz for a period of two years or more (CB 447 [25]).
6. The Tribunal then expressed concerns regarding the possible future impact of the COVID-19 pandemic on the applicant's business (CB 447-8 [26]-[30]).
7. In the circumstances, the Tribunal was not satisfied that the applicant had the capacity to employ Mr Nawaz on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension (CB 449 [31]). The Tribunal found that the requirements of reg 5.19(3)(d) were not met (CB 449 [32]). Again, this was an erroneous reference to the old Regulations and should have been a reference to regs 5.19(5)(l) and (m) and perhaps (n) of the Regulations at the date of the Decision. The Tribunal affirmed the decision under review (CB 449 [33]-[34]).

1. The applicant commenced this proceeding by originating application with an affidavit in support both filed 22 May 2020.
2. Procedural orders were made by a registrar on 29 July 2020 and by this Court on 12 November 2025.
3. On 11 November 2025, the applicant filed an outline of written submissions and an amended application in which the applicant identified one ground of review as follows:
   1. The Tribunal's decision to the effect that the likely adverse impact of the COVID-19 pandemic on the economic forecast of the business prevented the Applicant from meeting the requirements of reg 5.19 (3) (d) of the regulations is unreasonable and therefore the Tribunal fell into jurisdictional error.
4. The hearing of the application for judicial review took place in person at Melbourne on 2 December 2025. Ms Anang, solicitor, appeared on behalf of the applicant. Mr Hutton, solicitor, appeared on behalf of the Minister.
5. Leave was granted, without opposition, to amend the application for judicial review in the form annexed to the applicant's outline of written submissions filed 11 November 2025.

1. The applicant relied on the outline of written submissions filed 11 November 2025 and Ms Anang spoke to those submissions.
2. The change in the Regulations from the date of the delegate's decision to the date of the Decision was set out in considerable detail but ultimately Ms Anang properly conceded that any error by the Tribunal in referring to the wrong regulations was not a material jurisdictional error (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [4] and [9] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).
3. It was submitted that the Decision was legally unreasonable because the applicant's financial records for the three financial years preceding the Decision demonstrated that the applicant was able to employ Mr Nawaz as a fleet manager. The Tribunal's conclusion that the likely effect of the COVID-19 pandemic on the economic forecast of the business was unreasonable because 'in the first instance the COVID-19 pandemic was an unforeseen event that severely disrupted Australia's labour market in general'.
4. It was also submitted that the adverse impact of the COVID-19 pandemic was 'not foreseen by legislators in the course of drafting regs 5.19(3)(d) or 5.19 (5) of the Regulations thus it was unreasonable for the Tribunal to find that the likely adverse impact of the COVID-19 pandemic on the economic forecast of the business prevented the Applicant from meeting the requirements of reg 5.19 (3) (d) of the Regulations'.
5. This submission was said to be supported by subsequent amendments to the Regulations made in November 2020 known as Migration (Transitional operation of regulation 5.19 for certain 457 visa holders) Amendment Instrument (Lin 20/190) 2020 (Cth) (Lin20/190), which became operational on 23 November 2020. This amendment further altered the time limits applicable to Subclass 457 visa holders applying for new Subclass 186 visas. An Explanatory Statement was referred to in submissions that explained that allowance was now to be made for periods where Subclass 457 visa holders may have had reduced working hours due to the pandemic restrictions.
6. It was contended that LIN 20/190 'is authority for the proposition that the use of the COVID-19 pandemic and its impact on Australia's economic and labour market in general to make an adverse finding in relation to an Applicant's ability to meet the requirements of reg 5.19(3)(c)(i),(d)(i) and (ii) or alternatively the requirements of reg 5.19(5)(e),(f),(l) and (m) is unreasonable in the form identified in Li.'[1]
7. In oral submissions Ms Anang also submitted that it was unreasonable for the Tribunal to apply regs 3.19(5)(l) and (m) as the Tribunal did in the Decision, because it would unfairly punish Mr Nawaz in a way that was never contemplated by the legislature.

1. Mr Hutton relied on the outline of written submissions filed on behalf of the Minister and dated 25 November 2025.
2. On behalf of the Minister, it was succinctly put that the applicant had not established jurisdictional error by the Tribunal because the Decision was legally unreasonable. Lin 20/190 became operational after the Decision and was not relevant to the reasoning of the Tribunal. Further, the amendments to the Regulations did not support any inference or conclusion that the Tribunal was not entitled to (or should not) consider the adverse impact of the COVID-19 pandemic when assessing an application under regs 5.19(5)(l) and (m). The Decision was logical, rational and did not satisfy the "high bar" set by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [124] and [129] per Crennan and Bell JJ (SZMDS).
3. It was submitted that the onus was on the applicant to satisfy the Tribunal that it could employ Mr Nawaz for a period of not less than two years full-time. The Tribunal was not satisfied based on the evidence provided and submissions made that the applicant could do so and gave greater weight to the evidence before it that the pandemic was likely to have a further adverse impact on the operations of the applicant's business. The weight to be given to the evidence was a matter entirely for the Tribunal (Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]- [7] per RD Nicholson J).
4. The decision was logical and reasonable because the Tribunal considered the applicant's present and future ability to pay Mr Nawaz's salary but was not satisfied that the applicant could do so because it consistently operated at a loss for several years and the likely effect of the pandemic was unlikely to see business improve in the immediate to mid-term future.
5. The ground of review identified by the applicant was 'no higher than disagreement' with the Decision and sought to invite the Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30]- [31] per Brennan CJ, Toohey, Mchugh and Gummow JJ (Wu Shan Liang).

1. Despite the amendment to the form of the Regulations, the Tribunal's statutory task at the date of the Decision was to consider whether the application for nomination complied with the requirements of the Regulations, including whether under regs 5.19(l), (m) and (n) the following criteria was satisfied:

(l) the identified person will be employed on a full-time basis in the position for at least 2 years;

(m) the terms and conditions of the identified person's employment will not include an express exclusion of the possibility of extending the period of employment;

(n) the nominator's business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

1. The only ground of review pursued by the applicant was that the Decision was legally unreasonable. This is a high bar and is not to be used as a basis for de facto merits review (Wu Shan Liang at [32]: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [33]- [35] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175at [30(5)] (DAO16)).
2. On this occasion, the Tribunal considered the financial evidence presented by the applicant in circumstances where the applicant was aware from the delegate's decision that the evidence of financial sustainability was critical to the success of the nomination. The Tribunal was not satisfied that the evidence supported the conclusion that the requirements of reg 5.19 of the Regulations were satisfied. In doing so, the Tribunal looked at both the past performance of the applicant's business and the likely future performance given the unknown effects of the COVID-19 pandemic. This was both logical and rational on the available material. It was not a conclusion that no rational or logical decision maker could arrive at on the same evidence (SZMDS at [130]).
3. The applicant's submissions that the Decision was unreasonable because the evidence of financial statements presented by the applicant showed that the applicant was able to employ Mr Nawaz, is misconceived. The financial evidence was that the applicant's business during the periods in which Mr Nawaz was employed traded at a loss and continued to do so. Therefore, to conclude that the Tribunal should have been reasonably satisfied that this would continue to be the case for the next two-year period does not render the Decision illogical, irrational or unreasonable. The test is whether a rational, logical and reasonable decision maker could (as opposed to would) have reached the same conclusion based on the same evidence. Further, there was nothing in the reasoning of the Tribunal in the Decision that rendered the conclusion reached as arbitrary or capricious. To the contrary, the conclusion as to satisfaction of the Regulations was based on the available evidence and submissions presented by the applicant. It is not enough to simply assert that reasonable minds may differ as to the conclusion reached. Something more is required that is equivalent to 'extreme' illogicality (DAO16 at [30(5)]).
4. The fact that the impact of COVID-19 was not foreseen at the time of enacting reg 5.19 of the Regulations does not make the Decision irrational, illogical or unreasonable. The intent of the Regulations is to be ascertained from the language used. Here the Regulation requires the decision-maker to be satisfied that the nominating employer can fulfill the obligation to employ for at least a two-year period. There is nothing in the language used in the Regulations to suggest that it would be unreasonable to consider past and possible future or projected trading when considering that criteria. To the contrary it appears highly relevant to consider future trading performance when assessing the applicant's ability to satisfy the requirements for approval. This would include unknowns arising from unforeseeable events such as a pandemic.
5. The subsequent amendment of the Regulations does not assist the logic or persuasiveness of the applicant's submission. Lin 20/190 does not support the submission that the Decision was unreasonable. Lin 20/190 reflects that after the Decision, applications for nomination should be considered in light of the fact that some former Subclass 457 visa holders were prejudiced by the COVID-19 pandemic and therefore applications for nominations for transition from the former subclass to the new subclass should be considered under a different prism. The amendments do not make the Decision unreasonable because they were changed after the event. Further nothing in the changes suggest that the Decision was contrary to the provisions of regs 5.19(5)(l), (m) and (n) which remained unchanged.
6. There was nothing unfair or unreasonable about the Decision because it would deprive Mr Nawaz of a visa. The requirements to be fulfilled by a nominating employer are to be found in the Regulations and it is for the applicant to satisfy those requirements. That the applicant failed to do so may be unfortunate when viewed from the perspective of the nominated employee, but that does not warrant the Tribunal departing from the statutory requirements. It also does not make a conclusion that the applicant has failed to satisfy the requirements of the Regulations legally unreasonable
7. There was no material jurisdictional error by the Tribunal in making the Decision of the kind identified by the applicant in the amended application for review. The amended application for judicial review dated 11 November 2025 is dismissed.

1. The Minister sought an order that the name of the first respondent be amended to 'Minister for Immigration and Citizenship', which is the current Ministerial title which changed on 13 May 2025.
2. Further, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No_. 1) Act 2024_ (Cth), the name of the second respondent is to be amended to the 'Administrative Review Tribunal'.

1. Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the amended application for judicial review in the sum of $6,500.00 which is less than the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 3, Div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). The sum claimed is fair and reasonable in the circumstances and will be ordered to be paid by the applicant to the first respondent.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

[1] Reference was then made to Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [28] per French CJ.