Huang v Minister for Immigration and Citizenship [2026] FedCFamC2G 143

[4]

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

Huang v Minister for Immigration and Citizenship [2026] FedCFamC2G 143 | Case summary | Zoe

[11]

The matters both proceeded to a hearing on 20 May 2025, having been listed for hearing on that date on 13 March 2025. Orders made on 13 March 2025 required the applicants (in both matters) to file and serve their outline of submissions by 22 April 2025. The applicants did not comply with that order.
On 6 May 2025, the applicants' solicitor wrote to my Chambers advising that the parties had conferred and agreed to the adjournment of the upcoming hearing due to "counsel availability".
I was not initially disposed to vacate the hearing date as that would have meant that the hearing date was lost. It was too late, on 6 May 2025, to list another similar matter two weeks hence on 20 May 2025. The matter was listed for directions on 8 May 2025 and the parties were requested, inter alia, to provide evidence explaining the applicant's default of the order to file submissions, and to explain when they had retained counsel and why that issue had not been raised with the Court at an earlier point.
On 8 May 2025, I made orders providing an abridged timetable for the matter to proceed to a hearing at midday on 20 May 2025, the date on which the matter had originally been listed for hearing.
The applicants filed their written outline of submissions. The first respondent did not file any written submissions. However, at 10:51am on 20 May 2025, the parties forwarded proposed consent orders to my Chambers and sought to be excused from attending the hearing. I was not satisfied that there was an appropriate basis to make the orders sought, and proceeded with the hearing. When the matter came before the Court, I indicated to the parties that I had concerns about the suggestion that the Tribunal had erred in the manner contended. The first respondent, who had not filed any written submissions, made oral submissions, and the parties later submitted a further minute of consent orders which contained a note identifying the jurisdictional errors for which they contended.
At the hearing, the Court received into evidence the following material in relation to both matters without objection:

[29]

There is no dispute that the Court has jurisdiction to entertain the applications. The applications to invoke the Court's jurisdiction were made within the time specified in s 477(1) of the Act.
The Court is conferred with jurisdiction by s 476(1) of the Act, being the same original jurisdiction as that of the High Court of Australia under para 75(v) of the Australian Constitution, namely, jurisdiction where a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Writs of mandamus were sought in the applications.
The Court's jurisdiction is exercisable to correct jurisdictional error.
Jurisdictional error describes a failure by a person or body given authority under a statute to exercise a power to comply with a condition attaching to the exercise of that power, where that failure has the result that the decision or exercise of power is regarded as lacking the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; and in some cases, makes an erroneous finding or reaches a mistaken conclusion; or fails to observe some applicable requirement of procedural fairness: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) at [2]-[3].
In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: ibid [7].
Where it has jurisdiction, the Court is not confined to the remedies referred to in para 75(v) of the Australian Constitution. Rather, where it has jurisdiction, the Court is empowered by s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to make such orders as it considers appropriate.
Where the parties are agreed as to a particular outcome in proceedings from the Court, the Court does not act as a mere rubber stamp, to use the language of French J (as his Honour then was) in Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79; [1999] FCA 18 at [1]. Rather, the Court must scrutinise what is proposed by the parties to determine whether it is within the power of the Court and to satisfy itself that it is appropriate.
The applicants alleged that there were two jurisdictional errors in the Tribunal's decision concerning the employer's nomination application and contended that if there was jurisdictional error affecting the Tribunal's decision concerning the employer's nomination application, the decision about the first applicant's visa application would also be affected by jurisdictional error, as the refusal of the employer's nomination application was the reason for refusing the first applicant's visa application. That analysis is accepted. The grounds are set out below in the Consideration section of these reasons.
Accordingly, the critical questions for the Court for the disposition of both matters are whether the Tribunal's decision about the nomination application is affected by jurisdictional error, and if so, whether any such error was material, in the sense discussed in LPDT.
Those questions are considered below, following a summary of the visa and nomination applications, and the applications for review by the Tribunal.

[36]

The delegate concluded that it was not clear whether "Foodie House" had dine in facilities or was only a takeaway service. The delegate noted that on the first applicant's Form 80 lodged in connection with his visa application, he had indicated that he had been employed since October 2016 as manager at "Foodie House" in Shellharbour Shopping Centre, which he described as a takeaway business.
The delegate referred to Departmental policy in forming the view that a role managing a takeaway or fast food service in a small retail establishment, food court, or casual dining outlet was more appropriately described as a Retail Supervisor role, and not that of 'Café or Restaurant Manager'. The delegate noted that a retail manager role would not be eligible for nomination under the ENS or RSMS programs.
The delegate also referred to Departmental records of the first applicant's approved 457 visa nomination of March 2015, which had provided for a base salary for the first applicant of $60,000.00. The delegate observed that the total salary payments of $74,135.00 for the 12 months prior to lodgement of this nomination were not consistent with the stated number of staff, particularly taking into consideration that the base salary to the nominee alone was $60,000.00.
The delegate noted that the employer had not provided a letter from its accountant attesting to the current financial position of the business and its capacity to meet all employment obligations to the first applicant for a period of at least two years, and there was no evidence as to whether the nominating business has met its obligations under the Superannuation Guarantee (Administration) Act 1992 (Cth) in relation to its staff.
The delegate was not satisfied on the material that the employer had demonstrated the financial capacity to pay the full-time salary for the nominated position for at least two years, and found that the nominated position would not provide the employee with full-time employment for at least 2 years. Consequently, the delegate concluded that the employer did not meet the requirements of reg 5.19(3)(d) of the Regulations and therefore, reg 5.19(3)(d)(i) was not met and reg 5.19(3) did not apply to the nomination.
The decision record also contained a conclusion that subreg 5.19(4) was not satisfied, and set out the content of that subregulation, but did not contain any discussion about why that criteria had been found not to have been satisfied.

[45]

On 22 March 2018, the employer made an application to the Tribunal for review of the delegate's decision refusing the nomination application.
The first applicant and his spouse and child made applications to the Tribunal on 19 April 2018 for review of the delegate's decisions refusing the visa applications.
On 10 August 2020, the Tribunal wrote to the employer with an invitation to provide information. The letter noted that the application for nomination was made under the Temporary Residence Transition nomination stream and that the relevant criteria were in regs 5.19(2) and (3) of the Regulations.
The Tribunal stated that it required updated and current information addressing those criteria, and 'without limiting the information that may be given', invited the employer to provide information, examples of which it identified thereafter, including evidence of business registration, tax returns, business activity statements, financial statements, profit and loss statements, and balance sheets for the last two years. The letter also sought organisational structure charts, information about the roles and duties of the nominated position, a current employment contract, information about the first applicant's employment in the period preceding the nomination, and information about compliance with its training commitments and sponsorship obligations.
The employer's representative sent information to the Tribunal by email on 21 August 2020.
On 8 September 2020, the Tribunal wrote to the representative of both the employer and the applicants inviting the employer and the applicants to attend a joint hearing on 28 September 2020 to take place virtually via Microsoft Teams.
On 23 September 2020, the representative of both the employer and the applicants wrote to the Tribunal requesting that the hearing be postponed to allow the parties further time to prepare the evidence required for hearing. That same day, the Tribunal acceded to the postponement request and sent a letter setting out the details of the new date and time for the joint hearing, which was now to occur via Microsoft Teams on 14 October 2020.
On 12 October 2020, the representative of both the employer and the applicants again wrote to the Tribunal requesting a further postponement of the hearing to afford the parties further time to prepare for the hearing. That same day, the Tribunal acceded to the further postponement request and sent a letter setting out the details of the new date and time for the joint hearing, now to occur via Microsoft Teams on 28 October 2020.

[48]

In the nomination refusal decision, the Tribunal observed (at NR [2] and [3]) that the requirements for the approval of the nomination were found in reg 5.19 of the Regulations, noting that reg 5.19(3) contained the requirements for applications in the Temporary Residence Transition nomination stream, and that the employer had sought to demonstrate its satisfaction of those criteria.
The Tribunal noted (at NR [5] and VR [6]) that the two applications for review were heard together and that Mr Long Ong, one of the members of the partnership, appeared at the hearing to give evidence and present arguments along with the first applicant, Mr Huang.
At NR [9], the Tribunal observed that the issue in the matter before it was whether the applicant met the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in reg 5.19(3) of the Regulations, observing that for the nomination to be approved, all the requirements must be met.
The Tribunal then went on to consider the criteria in regs 5.19(3)(e) and 5.19(3)(h) of the Regulations.
The Tribunal paraphrased the requirements of those subregulations in the following terms (at NR [10] to [11]):
1. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
2. Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The Tribunal noted at NR [12] that the position in which the first applicant was nominated was that of café or restaurant manager at Foodie House in Dapto. The Tribunal noted that the oral evidence before the Tribunal was that the first applicant had occupied that role full time since February 2015, prior to which he had been employed on a part time basis between 2012 and 2015.
The Tribunal (at NR [13]) accepted the evidence of the first applicant that prior to commencing full time hours, he had worked as a waiter an average of between seven and eight hours per week and had been paid $18.00 per hour. The Tribunal calculated that the first applicant's earnings in that period were between $546.00 and $624.00 gross and was satisfied that he was earning more than $450.00 gross per month.
The Tribunal observed (at NR [14]) that the financial records for the 2015 financial year had no record of superannuation payments for any staff, despite total wages of $34,510.00. It noted that the employer's evidence was that the wages related to four part-time workers: two waiting staff and two kitchen hands, which the applicant said all earned on average between $7,000.00 and $8,000.00 per year.
At NR [15], the Tribunal records that it invited the employer, pursuant to s 359AA of the Act to comment or respond to adverse information that would be the reason, or part of the reason, for affirming the decision under review, namely the financial records for the 2015 financial year, which raised an issue of non-compliance with the Superannuation Guarantee requirement, and which may have meant the employer fell short of the requirement of no less favourable terms and conditions than are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location (the entitlement to 9.5% superannuation of wages) and other conditions such as leave entitlements.
The Tribunal recorded (at NR [16]) that the employer responded by explaining that none of his part-time staff earned more than $450.00 per month, which was why no superannuation was paid in 2015.
The Tribunal rejected that (at NR [17]), based on its calculations and on the oral evidence of the employer and the first applicant at the hearing. The Tribunal also rejected the possibility that superannuation for the 2015 financial year was paid in the following year (where $5,700.18 was recorded in superannuation payments against total wages of $71,389.00). The Tribunal noted the evidence that the first applicant was working full-time from February 2015 at $60,000.00 gross per year, and concluded as follows (in NR [17]):
1. ...Therefore, superannuation due to the nominee for his full time work in February 2015 and March 2015 (at $60,000 per year) would amount to more than nil. The nominee's superannuation entitlement was payable by 28 April 2015 (relating to the March 2015 quarter) and therefore any superannuation paid to the nominee would be recorded in the 2015 financial year for workplace entitlements due to him under the Superannuation Guarantee (Administration) Act 1992 federal provisions. This is even before any superannuation payable in relation to the nominee's part time earnings above $450.00 gross per month in FY 2015 are taken into account - or that of any of the other workers.
The Tribunal rejected the claim made by the employer's accountant that it had met all of its superannuation obligations in relation to its staff for 2015, 2016, 2017, and 2018, and noted that the letter made no claim in respect of the employer's superannuation obligations in the 2019 financial year (at NR [18]).
The Tribunal concluded as follows (at NR [18] to [19]):
1. ...Having regard to all the evidence, the Tribunal finds that in 2015 the applicant had not paid superannuation when it fell due and did not comply with obligations under that Act. Accordingly, the Tribunal is not satisfied that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

[50]

The Tribunal then went on (at NR [20]) to commence its consideration of the requirement in reg 5.19(3)(e) of the Regulations, specifically whether the first applicant's terms and conditions of employment would be no less favourable than those that are or would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal stated (at NR [20]):
1. The Tribunal has had regard to the employment contract dated 25 March 2017. In oral evidence, the nominee told the Tribunal that his terms and conditions entitled him to a total for 24 days each year for annual (recreation) leave and sick leave in combination. When asked how he knew this, the nominee responded that it was from discussions about his work entitlements with his employer, the applicant. The Tribunal carefully questioned the applicant in this regard who confirmed that the applicant was entitled to a total of 24 working days each year for annual (recreation) leave and sick leave in aggregate.
The Tribunal recorded (at NR [21]) that it put to the employer that workplace laws, including the National Employment Standards (NES) provide for an Australian citizen or permanent resident to have 20 working days of annual leave and 10 days of sick leave.
The Tribunal recorded at NR [22], that when the issue of "less sick leave comparable positions" was put to the employer, he (being the applicant in the nomination matter) then claimed that the first applicant was given one sick leave day per month as well as 20 days of annual leave. The Tribunal observed that this was inconsistent with the employer's initial oral evidence and the evidence of the first applicant, and that the employer had also said that the sick leave was not cumulative. The Tribunal recorded that it explained to the employer that the sick leave entitlement of the first applicant was less than the entitlement for an Australian citizen or permanent resident as such sick leave was allowed to accumulate.
The Tribunal concluded at NR [23] that it was not satisfied that the terms and conditions of employment applicable to the nominated position of Restaurant Manager will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location in NSW, and that accordingly the requirement in reg 5.19(3)(e) of the Regulations was not met.
At NR [25], the Tribunal concluded that it was not satisfied that the applicant met the requirements of reg 5.19(3) of the Regulations, had not sought to satisfy the criteria in the Direct Entry nomination stream, and as such had not met the requirements in reg 5.19(4) of the Regulations, and accordingly, the nomination of the position could not be approved.
The Tribunal affirmed the decision under review in connection with the nomination application.
In the visa refusal decision, the Tribunal noted (at VR [3]) that the criteria for the visa the applicants sought were set out in pt 186 of sch 2 to the Regulations, with the primary criteria to be satisfied by at least one applicant. The other members of the family unit needed only to satisfy the secondary criteria. The primary criteria included the criteria of the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
The Tribunal observed (at VR [4]) that the first applicant was seeking to satisfy the criteria in the Temporary Residence Transition stream, which, it observed, was designed for Subclass 457 visa holders who had worked for their employer for the past two years, and whose employer had offered them a permanent position in the same occupation.
At VR [11] and [12] of its reasons, the Tribunal summarised the criteria for the visa, as follows:
1. Clause 186.223, as applicable in this case, is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

[61]

A fair reading of the Tribunal's reasons otherwise does not support the conclusion that the Tribunal failed to appreciate what the first applicant's entitlements were as a matter of law. No criticism is made of the Tribunal's understanding of the measure of the applicant's legal entitlements. Rather, the Tribunal is said to err because it failed to find that the applicant's legal terms and conditions were "applicable", when the Tribunal was satisfied that they were not in fact being applied.
Whilst on the face of the contract the employee was to be afforded terms and conditions consistent with Australian law, in particular, four weeks (20 days) of annual leave and up to 10 days of personal leave (or up to 30 days in total), the Tribunal was presented with evidence from both the employer and the first applicant that the terms and conditions that were in fact being accorded to the applicant were less than that. The employer and the first applicant both gave evidence (recorded at NR [20]) that the first applicant was "entitled" to a total of 24 days per year of annual and sick (personal) leave. The Tribunal also recorded (at NR [22]) that the employer gave evidence that the applicant's sick leave was not accumulating. That was also contrary to the terms of the FW Act, and therefore contrary to the contract.
The Tribunal ultimately concluded (at NR [23]) that it was not satisfied that the terms and conditions of employment applicable to the nominated position would be no less favourable than those that are or would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace in the same location in New South Wales, and accordingly the requirement in reg 5.19(3)(e) of the Regulations was not met. That was, in effect, a conclusion that the terms stated in the contract which were consistent with Australian law, would not be applied in practice, that is, would not be "applicable" to the employee's employment.
The term "applicable", is defined in the Macquarie Dictionary as "capable of being applied; fit; suitable; relevant". When used in subreg 5.19(3)(e) of the Regulations to refer to the terms and conditions of employment of a particular position, the composite phrase that is constructed is capable, on a plain reading, of referring to the terms and conditions that will have application to the position by the force of law, and the terms and conditions that the Tribunal is satisfied will be applied as a matter of practice to the position. Ordinarily it might be expected there to be no difference between what the law provides and what obtains in practice.
To give the composite phrase a reading which would require the Tribunal not to consider whether an employee's legal entitlements are being afforded to them is contraindicated by the context in which the subregulation appears, and by its evident purpose. Regulation 5.19 of the Regulations prescribes the criteria to be satisfied by an employer who seeks to be approved as a nominator; that is, an employer with a position, the holder of which position will be entitled to the grant of a visa. The regulation elsewhere requires the decision-maker to address the bona fides of both the nominating employer, and the nominated employment. For the nomination to be approved, the decision maker must be satisfied, inter alia, that:

[63]

The latter criterion, regarding compliance, requires the decision-maker to consider whether the terms and conditions prescribed by law have in fact been afforded by the employer to its employees. That is, the decision-maker must compare the employer's record of performance of what the law requires. In the context of the regulation, that requirement has the evident purpose of identifying whether there is a basis to be satisfied that the employer will observe its legal obligations in respect of the employment of the nominated employee. Although the immediate focus of subreg 5.19(3)(e) of the Regulations is the comparison of the terms of the position with the terms that would apply to Australian citizens or permanent resident workers, the adoption of the narrower reading of the subregulation for which the parties contend would be less adapted to the task of evaluating the bona fides of the nominating employer and the nominated employment, which is the evident purpose of the regulation as a whole.
On the approach for which the parties contend, if the Tribunal heard evidence that the employer and employee had an arrangement in place where an employee would make cash payments back to the employer from their wages, the effect of which would reduce the real salary for the role below that of the Award applicable to comparable Australian workers, the Tribunal should not have regard to that arrangement in considering the employer's satisfaction of the criterion. Rather, because the FW Act and the contract provided for the employee to be entitled to the wages of comparable Australian workers, the Tribunal would be compelled to find the criterion satisfied. Given that there is a range of workplace laws and anti-discrimination laws that provide protection for employees, if that were the proper construction of the subregulation, it is not clear why the criterion would be included at all.
I am not satisfied that the Tribunal was limited to considering the terms and conditions that applied to the first applicant by operation of law or by virtue of the written contract, or that it was obliged to treat those terms and conditions as "applicable" regardless of other evidence as to whether they were in fact being applied. Accordingly, I am not satisfied that the Tribunal erred as alleged by failing to have regard to the terms of the first applicant's contract when it reached its conclusion at NR [23] that it was not satisfied that the employer met the requirement in the subregulation.

[68]

The ground, as articulated in the proposed note above and in the parties' written and oral submissions, is advanced on the basis that the Tribunal found a minor superannuation default by the employer in February and March 2015.
I do not read the Tribunal's conclusion about the employer's non-compliance to have been so limited.
The Tribunal at NR [13], recorded that the first applicant was working seven or eight hours per week for $18.00 per hour, prior to increasing to full time hours in February 2015. The Tribunal was satisfied that during that period the first applicant was earning between $546.00 and $624.00 per month, more than $450.00 gross per month, being what the Tribunal described as "the threshold for superannuation entitlements".
The Tribunal went on to record (at NR [14]) that in the employer's financial reports to the Tribunal nothing was recorded against superannuation payments for any staff, despite total wages in the 2015 financial year being $34,510.00. The Tribunal recorded the employer's oral evidence that those wages were paid to four part time staff, being two waiting staff and two kitchen hands who earned on average between $7,000.00 and $8,000.00 per year in the 2015 financial year.
The Tribunal (at NR [15]) recorded that it put to the employer, in accordance with the procedure in s 359AA of the Act, adverse information that would be a reason or part of the reason for affirming the decision under review, being the employer's apparent non-compliance with the Superannuation Guarantee.
It is apparent that the Tribunal's concern was understood by the employer as concerning all employees and not just the first applicant, as the Tribunal recorded at NR [16] that the employer claimed that none of his part-time staff earned more than $450.00 per month and that was why no superannuation was recorded as having been paid.
The Tribunal did not accept that evidence 'based on the calculations above' (at NR [17]). No challenge has been made to that finding.
The Tribunal then went on to deal with the claim by the employer that it was possible that superannuation for the 2015 year may have been paid in the 2016 financial year (following the end of the relevant quarter) as the employer's records showed superannuation of $5,700.18 paid in respect of a total wages bill of $71,389.00 for the 2016 financial year. The Tribunal's description indicates that the employer's claim was not that it had paid its superannuation obligation for the 2015 year in the 2016 year, rather, that it was possible that occurred.
The Tribunal rejected that explanation (at NR [17]) on the basis that the first applicant commenced full-time employment in February, and his earnings in February and March 2015 in the March quarter (at the rate of $60,000.00 per year) would have attracted a superannuation liability payable in April 2015. That paragraph ends with the following:

[72]

The Tribunal did not fail to take into account the statement from the employer's accountant as the parties contend - it did not accept the submission contained in the letter about the employer's satisfaction of its obligations. It was open to the Tribunal not to accept that evidence. The statement appeared in a letter which contained little more than the assertion recorded in [18]. The Tribunal had a clear basis to reject the statement contained in the letter in relation to 2015. It was not in those circumstances obliged to accept the contents of the letter otherwise, nor was it obliged to presume that the employer had a satisfactory record of compliance until the contrary was definitively proven. It was open to the Tribunal to simply not be persuaded that the nominator satisfied the criteria.
The Tribunal's finding was that the employer had failed altogether in the 2015 financial year to meet its superannuation obligations. That failure concerned five of its staff, including the first applicant, even when the first applicant had commenced the full-time employment the subject of the nomination. The Tribunal did not make a finding that there had been some trifling non-compliance in a single quarter, nor was that the necessary conclusion from the Tribunal's reasons.
The applicant relies upon the judgment of Judge Egan in Jai Babaji Di Pty Ltd v Minister for Immigration & Anor [2020] FCCA 2018, in which his Honour considered a decision of the Tribunal concerning a subregulation with a criterion comparable to that in subreg 5.19(3)(h) of the Regulations. In that matter, the Tribunal had found that the employer had failed to pay $393.30 in superannuation in respect of an employee other than the nominated employee. The putative non-payment concerned a wages bill of some $4,140.00 for the period between April and June 2018.
During the course of the hearing in that matter, the Tribunal member had questioned the employer about the putative non-payment, and the employer had expressed the view that she had complied with her superannuation obligations. The employer and the Tribunal member had expressed different views about whether the payment in respect of that quarter should have been paid and recorded in the records of the 2018 financial year. The employer said that she needed to consult her accountant to clarify the position. That request was rejected. In the event, the employer had paid the amount of $394.30 in superannuation five days after the end of the quarter.
His Honour concluded that the decision of the Tribunal to refuse the applicant's application to adjourn was a jurisdictional error; no reasonable Tribunal member should have so exercised the discretion. Given the finding, which involved a conclusion that the superannuation contribution for the relevant quarter had in fact been paid, what follows from his Honour might be considered obiter dicta.
Judge Egan then opined on the "satisfactory compliance" question at [18] as follows:
1. In any event, the Court is not satisfied that even if the applicant had been guilty of one transgression in the payment of the sum of $393.30 by way of superannuation contribution, as was erroneously asserted by the Tribunal Member, that that would necessarily constitute an unsatisfactory record of compliance with the laws of the Commonwealth for the purposes of r. 5.19(4)(g) of the Regulations. Mr Cummings on behalf of the first respondent properly conceded that the test for what constituted satisfactory compliance was something less than what constituted absolute compliance. The Tribunal failed to intellectually engage on the question as to what, if any, noncompliance by the applicant less than absolute compliance would have justified a refusal of the nomination application pursuant to r. 5.19(4)(g). That failure to appropriately consider a relevant matter which was central to the Tribunal's deliberations was also jurisdictional in nature. The Tribunal's findings lacked sufficient detail to satisfy the Court that it had so intellectually engaged. So much was borne out by what was said by the Tribunal at [15] - [17] of its reasons.
I am unable to agree with his Honour's reasons do not follow his Honour.
It may be accepted that the identified non-compliance in the matter before his Honour, if the evidence otherwise indicated that the employer had complied with all its other statutory obligations, would not necessarily compel the conclusion that there was an unsatisfactory record of compliance. As a matter of logic, something less than a record of absolute compliance may be found to be a "satisfactory record of compliance". It is one thing to acknowledge the logic of that proposition. It is another thing to erect that proposition as containing mandatory intellectual guardrails for any consideration of satisfaction of the subregulation.
The conclusion that subreg 5.19(3)(h) poses for determination the question as to what non-compliance less than absolute compliance justifies a refusal of the nomination application inverts the test posed by the subregulation. The subregulation requires the decision maker to be satisfied (positively) that there is a satisfactory record of compliance. The question whether there is a satisfactory record of compliance is an evaluative one that might be answered having regard to a range of matters, such as the evidence about the employer's history and workplace practices and the quality of that evidence, the extent and period of demonstrated compliance, the existence of any gaps in that history, the extent and period of any established non-compliance, the circumstances of any non-compliance, whether any remedial steps have been taken in respect of any non-compliance, the number of employees affected by any non-compliance, the explanation or reasons for any non-compliance, and so on. Which matters become relevant will likely depend on the nature of the circumstances of the particular nominator. In undertaking that evaluative task, the Tribunal is at liberty to adopt such reasoning as arises on the evidence that was before it, provided its reasoning was not illogical or irrational in the sense discussed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. It is not incumbent on the Tribunal addressing the criterion to start from a presumption of satisfactory compliance. Too great a focus on the question whether there is proven non-compliance, and the extent of such non-compliance, risks obscuring the question whether a satisfactory record of compliance has been demonstrated.
The Tribunal found the employer failed to pay superannuation contributions over the course of the entire 2015 financial year affecting the first applicant as well as four other part-time employees, and had been provided with a bald assertion of satisfactory compliance from the employer's accountants which was demonstrably incorrect as to 2015 and silent as to 2019 which the Tribunal did not consider persuasive. The Tribunal did not err, in those circumstances, in failing to approach the question of the employer's satisfaction of the subregulation by posing the question whether the demonstrated non-compliance was such as to justify a refusal of the nomination application. The Tribunal correctly understood the requirement of the subregulation and was entitled on the evidence before it not to be satisfied that the employer met it.
I am not satisfied that the Tribunal erred as alleged.

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