IT Consumable Solutions Pty Ltd v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 557

Information about the terms and conditions of employment in the nominated position and whether they are more or less favourable than those provided for an Australian citizen or permanent residence performing equivalent work in the same workplace and location.

1. On 22 August 2019, the solicitors appointed to act for the Company provided further information to the Tribunal which included an ASIC database search, financial statements, various invoices, Australian Taxation Office activity statements, a position description and a new organisational structure chart of the Company dated 2019 (CB 64-89). The solicitor for the Company also requested an extension of fourteen days to submit further documentation in response to the Tribunal's invitation (CB 64).
2. On 23 August 2019, the Tribunal granted the Company an extension of time to provide further information by 6 September 2019 (CB 92). The Tribunal noted that if the information was not received by 6 September 2019, then the Tribunal may make a decision on the review without taking any further action to obtain information.
3. On 5 September 2019, the solicitors for the Company provided one further document which was described as "Examples of daily tasks that [the employee] performs in his position" (CB 93-8).
4. On 9 September 2019, the Tribunal sent an invitation to the Company and its solicitors to attend a hearing to give evidence and present arguments before the Tribunal. The hearing was to take place on 10 October 2019 (CB 101-3).
5. On 4 October 2019, the solicitors for the Company sought an adjournment of the hearing to a date after 18 November 2019 as Mr Hughes's wife was undergoing surgery and he was required to attend to her care (CB 106).
6. On 8 October 2019, the Tribunal agreed to the postponement of the hearing and rescheduled a hearing to be conducted in person at Melbourne on 2 December 2019 (CB 108-110). The letter from the Tribunal noted that if there was no attendance at the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable the Company to appear before it and may dismiss the application for review without further consideration (CB 110).
7. On 1 December 2019, Mr Hughes sent an email to his solicitor informing him that he must postpone tomorrow morning's meeting because his children were ill. He asked that his solicitor reschedule the hearing for "later in the week or next week" (CB 116). The solicitor sent a copy of the email to the Tribunal requesting an adjournment and informed the Tribunal that the solicitor would be attending in person to seek an adjournment of the hearing (CB 119-120).
8. On 2 December 2019, there was no appearance before the Tribunal and the Tribunal dismissed the Company's application for review pursuant to s 362B(1A)(b) of the Act (CB 124-7, 152 -153).
9. On 3 December 2019, Mr Hughes provided a medical certificate explaining his non-attendance before the Tribunal which the Tribunal construed as an application for a reinstatement of the application for review (CB 215).
10. On 4 December 2019, the Tribunal invited the Company to appear before the Tribunal at a hearing to be conducted on 5 December 2019 (CB 216-9).
11. On 5 December 2019, Mr Hughes appeared with his solicitor before the Tribunal and gave evidence (CB 227-9). The Tribunal ordered that the application for review be reinstated pursuant to s 362B(1C)(a) of the Act (CB 232-4).
12. On 20 December 2019, the solicitor for the Company provided further documentation to the Tribunal that included an ASIC Historic Company Extract (CB 241-7), a certificate of WorkCover insurance (CB 240), financial statements for the year ending 30 June 2019 (CB 248-259), and PAYG payment summaries (CB 260-2). The PAYG payment summaries related to the employee and indicated that in the financial years ending 2016, 2017 and 2018 the employee had been paid substantially less than the agreed base salary of $78,000 plus superannuation. Mr Hughes, on behalf of the Company, also sent a copy of the 2018 contract of employment to the Department of Home Affairs, Immigration and Border Protection (CB 263-275). The covering letter said that the employee had been employed as the Chief Information Officer since 6 January 2014 (CB 263).
13. On 9 January 2020, the Tribunal wrote to the Company and their representative inviting them to comment on two matters which had come to the attention of the Tribunal (CB 277-281). The first matter was as follows (CB 278):

The Tribunal has made the observation that, based on the PAYG provided for the nominee, his gross salary payments have been $27,380 less than the salary set out in the employment contract.

The Tribunal has considered publicly available information regarding average salaries for Chief Information Officer in Melbourne. The average salary listed on Payscale and JobOutlook equates to an average of $176,893.

The information is relevant to the review because based on the employment contract provided you are paying the nominee a gross salary payment that is less than the average salary, and it may indicate that the salary being paid is $98,893 less than the salary that would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location.

1. Attached to the letter from the Tribunal was an extract from Payscale and an extract from JobOutlook (CB 282-3). The Tribunal also attached an extract from reg 5.19 of the Regulations (CB 284-6).
2. On 23 January 2020, the solicitor for the Company wrote to the Tribunal advising (CB 287):

With reference to the above mentioned application, please be informed that the delegate of IT Consumable Solutions Pty Ltd (applicant) who issues the company documents is currently on leave and is back in the second week of February 2020. Therefore the applicant wishes to request for an extension of 21 days to submit the required supporting documents to the Tribunal.

1. On 24 January 2020, the Tribunal replied to the solicitor for the Company and Mr Hughes advising that the request for an extension of time had been refused and that a response to the request for comment must be provided by 31 January 2020 (CB 290-1).
2. On 31 January 2020, Mr Michael Gros, Barrister, sent an email to the Tribunal advising that he had been appointed as the new legal representative of the Company. Mr Gros requested a further extension of time to provide documentation noting that he was overseas and did not expect to return to Melbourne until 10 February 2020 (CB 293).
3. On 4 February 2020, the Tribunal sent an email to Mr Gros informing him that the request for a further extension of time was refused. The Tribunal had not received any comment from the Company and proposed to proceed to make a decision on the review without taking any further action to obtain the Company's views on the information (CB 298).
4. On 7 February 2020, the Tribunal affirmed the decision under review to refuse the nomination (Decision) (CB 300-311). A copy of the Decision was sent by email to Mr Gros (CB 300-1).
5. On 17 February 2020, the former solicitors for the Company wrote to the Tribunal informing it that Mr Gros had suffered a stroke and was hospitalised in the Philippines with his condition considered critical (CB 314). The letter further requested that the Tribunal not make a decision on the employee's application for review and informing it that they had been reappointed to act on behalf of the Company and the employee (CB 314-321).
6. On 24 February 2020, the solicitor for the Company wrote to the Tribunal attaching a letter dated 18 February 2020, providing commentary in response to the Tribunal's request for information dated 9 January 2020 (CB 331-333). The commentary provided was to the effect that the Company was a small business with a turnover of between $4 million and $6 million with a staff of approximately twelve employees (CB 331-2). The solicitors claimed that the employee was paid a salary that was commensurate with the market salary rate as evidenced by the employee's contract of employment. The letter attached the original temporary resident Business Nomination Visa form completed by the Company in relation to the employee's 2013 contract of employment, a letter from the Department approving the Company as a nominated employer in 2013 and advertisements from the Seek website noting salaries for an IT Manager (CB 334-349). The advertisements indicated salary offerings of between $65,000 and $80,000 per annum.
7. On the same date, the solicitor for the Company wrote another letter purporting to explain the difference between the PAYG statements and the payment of salary as set out in the 2018 employment contract. The solicitor explained that the error was caused by a former director of the Company who had since exited the business. The Company intended to pay the employee the difference for the five-year period in which he had been underpaid and inform the Australian Taxation Office accordingly (CB 359-361).
8. On 20 February 2020, Mr Hughes wrote to the Registrar of the Tribunal apologising again for the discrepancy between the contracts of employment and the PAYG statements. Mr Hughes also blamed the former director of the Company for the error (CB 362-3).
9. On 24 February 2020, the solicitors for the Company wrote to the Tribunal informing that Mr Gros died on 17 February 2020. The solicitors requested that the Tribunal reconsider the Company's application (CB 325-330). On the same day the solicitors sent another letter to the Tribunal, this time on behalf of the employee and his family requesting that the Tribunal defer making a decision on the employee's application for review in related proceeding number 1801607 (CB 352-4). Moreover, Mr Hughes wrote another letter to the Tribunal informing the Tribunal of the death of Mr Gros and requesting that the Tribunal reconsider the Company's application for review (CB 401-2).
10. On 28 February 2020, the Tribunal wrote to Mr Hughes informing him that the Tribunal had considered his request but had decided not to reopen the Company's case (CB 404).
11. On 16 March 2020, the Company applied to this Court for judicial review of the Decision (CB 409-413). The Company was notified of the Decision on 7 February 2020 in an email to Mr Gros (CB 300), who was then recorded as the authorised legal representative of the Company for the purposes of the review by the Tribunal. Therefore, the time within which to make an application to this Court pursuant to s 477(1) of the Act expired on 13 March 2020 and the application for judicial review was three days late. Accordingly, the Company is required to seek an extension of time under s 477(2) of the Act.
12. On 14 February 2025, the Company filed an Amended Application identifying four new grounds of review with particulars.

1. In the Decision, the Tribunal identified the issue to be determined as (CB 303 [8]):

"... whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met."

1. The Tribunal then set out the procedural history and the request by the Tribunal for information and documents (CB 303-6 [9]-[20]). The Tribunal made specific reference to the hearing on 5 December 2020 where Mr Hughes appeared for the Company with his solicitor (CB 304 [13]). At paragraph [15] of the Decision (CB 305) the Tribunal said:

Notably, the Tribunal did not receive any information or evidence regarding the nominee's proposed salary for the nominated position of Chief Information Officer. At the hearing, the Tribunal flagged with Mr Hughes its concern that the nominee's proposed salary of $78,000 per annum plus 9.5% superannuation may not be commensurate with the average Chief Information Officer salary in Melbourne. Mr Hughes assured the Tribunal that the nominee received bonuses and commissions in addition to his base salary, and advised the Tribunal that the nominee's PAYG statements would reflect his true earnings with the applicant.

1. The Tribunal noted that because it had not received any information from the Company by 9 January 2020, it made a formal request for information pursuant to s 359A of the Act requesting comment on the issues recited at paragraphs [28] and [29] above (CB 305 [16]).
2. The Tribunal then referred to the subsequent correspondence in late January and early February 2020 resulting in the notification of a change in legal representation and the further request for more time to respond to the request for comment (CB 306-8 [21]-[27]).
3. The Tribunal then considered the criteria in reg 5.19(3)(e) of the Regulations, the evidence given by Mr Hughes at the hearing on 5 December 2019 and the documents produced after that hearing (CB 308 [30]-[32]). It found at CB 309 [34] that:

The Tribunal finds that the nominee's proposed salary of $78,000 per annum is considerably lower than even the lower end ranges quoted above. In the absence of any evidence to the contrary, the Tribunal finds that the nominee's proposed salary is less favourable than the salary that would be provided to an Australian citizen or permanent resident working as a Chief Information Officer in Melbourne. Further, the Tribunal finds that the nominee's actual salary as recorded in his PAYG statements is inconsistent with the terms of the employment contract. Based on the evidence before it, the Tribunal finds that the applicant has not been paying the nominee the salary amount set out in the employment contract, and finds that the terms and conditions of the nominee's employment, specifically his salary, are less favourable than those that would be provided to an Australian citizen or permanent resident working as a Chief Information Officer in Melbourne.

1. The Tribunal found that the requirements in reg 5.19(3)(e) of the Regulations were not met. The delegate's decision to refuse the nomination was affirmed (CB 309 [37]).
2. After notifying the Company of the Decision, the Company then asked for the Tribunal to review the Decision and the Tribunal declined to do so (CB 404).

1. In the amended application for judicial review filed 14 February 2025, the Company identified the grounds upon which it sought an extension of time as follows:

Although the decision was made on 7th February 2020, the Applicant was notified on 24th February 2020.

1. The amended application further identified the amended grounds for judicial review as follows:

Ground 1: The Tribunal misconstrued Regulation 5.19(3)(e) in assessing the "terms and conditions of employment applicable to the position". The Tribunal erred in its interpretation of Regulation 5.19(3)(e) as requiring an assessment of average salaries payable to a person holding a similar title in the market.

Particulars

(a) On a proper construction of the statute, the Tribunal was required to consider whether the terms and conditions of the particular 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 at the same location.

(b) The Tribunal did not consider the terms and conditions of employment on offer with reference to what would be offered to an Australian citizen or permanent resident performing equivalent work in the same workplace (emphasis added).

Ground 2: In considering whether Regulation 5.19(3)(e) was satisfied in respect of the Applicant's nomination, the Tribunal failed to take relevant considerations into account.

Particulars

(a) The Tribunal failed to consider the nature of the particular position and the workplace.

(b) The Tribunal concluded that the nominee's proposed salary of $78,000 per annum was considerably lower than the market rate without consideration as to the size and capacity of the workplace or the duties and responsibilities of the position on offer for the nominee.

Ground 3: The Tribunal denied the Applicant a real and meaningful opportunity to address the concerns raised by the Tribunal as to the nomination being able to satisfy Regulation 5.19(3)(e).

Particulars

(a) The Applicant was not notified of the Tribunal refusal to grant an extension of time to provide additional material on 4 February 2020 or its intention to make a determination in the absence of input from the Applicant.

(b) The Tribunal's correspondence to the Applicant's authorised representative was not passed on to the Applicant.

(c) The Tribunal did not contact the Applicant upon failing to get a response from the Applicant's authorised representative.

Ground 4: The Tribunal erred in denying its authority to re-determine the matter and correct its error identified in one or more of the Grounds above.

Particulars

(a) The Applicant provided further material in support of its application on 24 February 2020 and notified the Tribunal that it had not received the Tribunal's communication following 31 January 2020 as its authorised representative had been ill and passed away on 17 February 2020.

(b) On 28 February 2020, the Tribunal notified the Applicant that it had no power to reopen the matter following its determination on 7 February 2020.

(c) The Tribunal's decision dated 7 February 2020 was invalid by reason of one or more of the Grounds above.

1. In the affidavit that accompanied the original application for judicial review, affirmed on 16 March 2020 by Mr James Perera, a former director of the Company, the deponent simply annexed a copy of the Decision and claimed that he was "aggrieved" by the Decision (CB 415-6). No further explanation was given.
2. On 3 March 2025, the solicitor for the Company affirmed an affidavit which deposed to the following:
   1. On or about 24 February 2020, we were notified by the Administrative Appeals Tribunal of the decision to refuse the Nomination application of the Applicant bearing AAT reference 1730663. The late Mr. Michael Gros had carriage of this matter at the time and was the authorised representative on record, the original notification being sent to Mr. Gros on 07 February 2024.
   2. On or around 17 February 2020, we were notified of Mr. Gros' passing, which caused a significant deal of pressure for all parties involved.
   3. Upon being informed of the Tribunal's decision almost 2 weeks after the original notification, we then had to seek instructions from the Applicant Company in respect of the application to be filed in the Federal Circuit Court, assess the merits of the case and brief a new counsel.
   4. In light of the extremely unfortunate circumstances, all of the above required substantial time and we filed the necessary paperwork to ensure the Applicant and associated applications were not adversely impacted.
3. A hearing of the application for an extension of time, the merits of the amended application and the application for judicial review in proceeding MLG961/2020 was held in person at Melbourne on 4 March 2025.
4. Ms Goonetillake of counsel appeared for the Company. Mr Newland of counsel appeared for the Minister.
5. Prior to the hearing, the Company, the employee and the Minister filed written outlines of submission.

1. The principles that apply to whether the Court should grant an extension of time are well established (see Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344 (Hunter Valley Developments)). In deciding whether to grant an extension of time, the Court will often have regard to considerations such as the length of the delay, whether the applicant has a reasonable explanation for the delay, any prejudice to the respondent or third parties, and the merits of the underlying application (on an impressionistic evaluation). The mere absence of prejudice alone is not a sufficient reason to grant an extension of time (Hunter Valley Developments at 349).
2. Other than the "interests of the administration of justice" there are no mandatory relevant considerations (see SZUWX v Minister for Border Protection (2016) 238 FCR 458 at [11]-[12]). The focus of s 477(2) of the Act is not on the interests of the applicant, but the broader interests of the administration of justice. The Court may look at a myriad of facts and circumstances but the level of satisfaction is not low; the Court must be satisfied not just that an extension of time is desirable, but that it is necessary in the interests of justice (see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [12]).
3. In this case, the length of delay was not substantial, three days, which has been partly explained by correspondence in the Court Book, but not in any substantive affidavit filed on behalf of the Company. The delay was in part due to the ill health and untimely death of Mr Gros on 17 February 2020 and the apparent lack of knowledge of the Decision (CB 314-5).
4. The grounds stated for an extension of time in the application for judicial review and the amended application are unconvincing. So too, is the affidavit in support of the application affirmed 3 March 2025, where it is asserted that the Company was not notified by the Tribunal of the Decision until 24 February 2020. That assertion is contradicted by the letter sent to the Tribunal from the Company's solicitor dated 17 February 2020, which clearly acknowledges receipt of a letter from the Tribunal on 10 February 2020 (CB 314):

Due to the above and in this stressful situation, we seek the Tribunal's kind understanding to refrain from making a decision on AAT case number 1801607 as well as grant an extension of time for the applicants to respond to the Tribunal's letter dated 10.2.2020...We further humbly request for the Tribunal to reconsider the decision it made in respect of AAT case number 17330603 of which the Tribunal has delivered its decision addressed to Mr Gros as the authorised representative on 7.2.2020.

1. The letter refers to the Decision and requests that the employee comment on why the Tribunal should not now affirm the Decision to refuse the visa. Regardless of whether the solicitors for the Company received a copy of the reasons, the Company knew of an adverse decision from at least 10 February 2020 and that time was of the essence.
2. The Minister submits that even if it is accepted that the Company was not notified of the Decision until 24 February 2020, the Company by then had a further eighteen days within which to make an application to the Court for review. The Company was, by then, represented by the same firm of solicitors that were retained previously to act and was surely aware of the need to make an application for judicial review within 35 days of the Decision. The Minister also relies on the letter to the Company's solicitor on 10 February 2020 in his capacity as solicitor for the employee. The Minister also submitted that there was no adequate explanation given for the delay in filing the application for judicial review, which has now been completely revisited in the amended application without further explanation. That alone was a reason to refuse to extend time.
3. The Minister could not identify any prejudice but submits that the amended application for judicial review is also without merit and therefore an extension of time should not be granted.
4. The Company submits that because notice of the Decision was given to Mr Gros, it was not until much later than 7 February 2020 that the Company became aware of the actual written Decision. It was then necessary to consider the reasons for the Decision, consider the merits of further review, obtain instructions and brief new counsel. It was submitted that the delay was only minor and excusable given the unfortunate nature of events. The length of delay of only three days is an important consideration in the exercise of discretion and the interests of justice weigh in favour of an extension (see Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [6]).
5. In all of the circumstances, including the fact that the related proceeding brought by the employee was commenced within time, is to be heard at the same time (with the same legal representation) and requires consideration of the validity of the Decision, it would not be in the interests of the administration of justice to deny the Company an opportunity to pursue judicial review of the Decision. There was no doubt some confusion and uncertainty created by the illness and death of Mr Gros. The solicitors for the Company were aware of the Decision shortly after it was made, however the delay in filing the application for judicial review was not long and the merits of the Decision will ultimately influence the outcome of the related proceeding (MLG961/2020) for judicial review which relies on the same evidence, documents, correspondence and submissions. The merits of the grounds of review are also arguable (assessed on an impressionistic level) and the Company and the employee is entitled to have them considered in more detail.
6. In the absence of prejudice and substantial delay, it is in this case necessary in the interests of the administration of justice to allow the Company to pursue the grounds of review articulated in the amended application. An extension of time will be ordered pursuant to s 477(2)(b) of the Act. The time within which to bring the judicial review application is extended to the date upon which it was filed (16 March 2020) to permit the Company to seek judicial review of the Decision. Leave will also be granted pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) to amend the application for judicial review to the form of the document filed with the Court on 14 February 2025.

1. Firstly, the Company submitted that the Tribunal erred in the construction of reg 5.19(3)(e) of the Regulations. The error was to construe the regulation too broadly and the Tribunalnshould have confined itself to an assessment of whether the terms and conditions of the position were no less favourable than the terms and conditions that are provided to an Australian citizen or permanent resident in the same workplace and at the same location. When construed in context, the regulation requires an assessment of a position, which is a particular job with a particular employer that exists at a particular point of time in the same workplace at the same location (see Singh v Minister for Immigration and Border Protection [2017] FCAFC 105; [2017] 253 FCR 267 at [88] per Mortimer J (as her Honour then was) (Singh 2017) and Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123; (2023) 299 FCR 464 at [143] per Raper J (Singh 2023)). It was submitted that the geographic location was important and not an assessment of the market for employment at large. The salaries paid to Chief Information Officers in Melbourne, as a whole, was casting the net too wide and the regulations required the Tribunal to confine inquiries as to terms and conditions to "the same workplace at the same location". This was a material jurisdictional error by the Tribunal.
2. Secondly, it was submitted that the Tribunal took into account an irrelevant consideration when it considered only average salaries of a Chief Information Officers from the two identified sources of information (PayScale and JobOutlook). That was not what the regulation required. The regulation required an assessment of the salaries of employees that performed the same work, in the same workplace, at the same location. This also required the Tribunal to consider the size of the Company's organisation and business and the financial information supplied by the Company in that regard. The Tribunal did not consider these relevant considerations but considered irrelevant material in breach of the statutory test (see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [52]).
3. Thirdly, the Tribunal failed to inform the Company of the case against it and provide the Company a reasonable opportunity to respond. The Tribunal refused to grant the Company a further extension of time to respond to the request for comment. In the email dated 23 January 2020, the Company sought an extension of time to respond because the "delegate of IT Consumable Solutions Pty Ltd who issues the company documents is currently on leave" (CB 287). That request was unreasonably refused by the Tribunal and procedurally unfair (see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40] (Bhardwaj)).
4. It was submitted that because of procedural unfairness, the Tribunal did not make the Decision after considering all relevant evidence and arguments and did not conduct a review as required by the Act (Bhardwaj at [43]). It was also unreasonable to make a decision on 7 February 2020 without hearing from the Company as to the concerns previously expressed by the Tribunal on 9 January 2020.
5. The failure to extend procedural fairness also meant that the Tribunal could have recognised its own error and could have reinstated the review and arrived at a different decision (Bhardwaj at [46] and [53]). The Tribunal misconstrued the jurisdiction to correct its own decision and should have reconsidered the Company's application for review when asked to do so. A decision made with knowledge of a jurisdictional error is in law no decision at law. Therefore, in law the duty to make a decision remains unperformed and can be revisited.

1. The Minister sought to rely on the documents in the Court Book (Exhibit R2) and an affidavit of Anthony Gardner, a solicitor, affirmed 27 February 2025, that annexed a copy of the Departmental policy guidelines for reg 5.19 of the Regulations in effect as at 15 December 2017 (Exhibit R1).
2. In the written outline of submissions filed on behalf of the Minister, there was an extensive chronology of relevant events that listed all of the requests for information made by the Tribunal and the numerous requests by the Company for more time. Those events culminated in a final extension of time granted by the Tribunal of seven days (CB 291-2). That gave the Company until 31 January 2020 to address the concerns expressed by the Tribunal. The Company elected to appoint new legal representation and request a further extension when an extension of time had already been refused. This was relevant when assessing if the Tribunal acted reasonably.
3. Counsel for the Minister addressed each of the grounds of review in the amended application. In relation to grounds one and two, the Minister sought to distinguish the decision in Singh 2017. In that case, the employer applicant for the nomination did not file any information in support of the nomination and it was refused. The employer subsequently filed a new nomination. The employee sought judicial review of a decision to refuse the employee a visa based on the first failed nomination. The Court held in Singh 2017 that the Tribunal must consider the employee's visa application in the context of the nominated position, for which the application was made and not another nomination. It was submitted that Singh 2017 did not stand for the proposition that the regulations must be construed narrowly and confined to the actual place of employment and the nominee.
4. Counsel for the Minister also sought to distinguish the decision in Singh 2023 from the facts in this proceeding. In Singh 2023 the position nominated had ceased to exist and the Court considered that the regulations must be applied to the original position nominated by the employer. That was not the same as the facts in this case. To confine the application of the regulations to only "equivalent work in the same workplace at the same location" in every case, was to construe the regulation too narrowly and would make the regulation otiose and inconsistent with the purpose of the regulations, because if there were no such employee that was a citizen or permanent resident, in the same workplace and same location, there would be nothing to compare. The Regulations necessarily required consideration of the hypothetical in the absence of a comparator. Reliance was place on Singh 2023 at [47] where Charlesworth J said:

The sole purpose of Harsinco's nomination application was to obtain approval for a particular position to be occupied by a particular non-citizen (Mr Singh) so as to fulfil only one of the many criteria for the particular subclass of visa for which Mr Singh applied. Those criteria, together with the detailed requirements of reg 5.19, establish a comprehensive regime directed to an essentially practical concern: the employment of non-citizens in sectors and places where they are needed, and (conversely) not in sectors or places where they are not needed.

1. It was submitted that the position of Chief Information Officer was identified as a position for which visas would be made available for nominated employees in the skilled migration program and for which the Company sought nomination. It was consistent with the proper construction and purpose of the Regulations for the Tribunal to look at the prevailing market salaries for positions of that description to determine if a nominated employee was to be employed on terms less favourable to an Australian citizen or resident. This was also consistent with the Departmental guidelines (cl 7.5 of the policy, Exhibit R1 at pages 25-8 and in particular cl 7.5.4). This included looking at broader labour market data including job vacancy advertisements. Therefore, the Tribunal did not misconstrue the Regulations or apply the wrong legal test. The Tribunal also considered relevant information and did not err by considering irrelevant considerations.
2. It was submitted that the detailed chronology provided in the written outline of submissions showed that the Company was given a real and meaningful opportunity to address the Tribunal's relevant concerns and elected not to do so or could not do so. There was no denial of procedural fairness. In particular, the Tribunal raised with Mr Hughes at the hearing on 5 December 2020 that the proposed salary may not be commensurate with the average CIO salary in Melbourne. Mr Hughes is recorded as saying that the employee was paid bonuses and commissions in addition to the base salary, and this would be reflected in PAYG summaries (CB 305 [15]). The PAYG summaries that were provided did not corroborate Mr Hughes evidence. The Company was also given repeated opportunities to provide information to the Tribunal to support concerns expressed but did not. That was a fair and meaningful opportunity to be heard and not procedurally unfair or unreasonable.
3. In relation to ground four, the Company's request required the Tribunal to determine that it had fallen into jurisdictional error (which in this case it was submitted it had not). The facts in this case were different to Bhardwaj, where the Tribunal realised that it failed to consider a relevant document and the decision made was plainly wrong. It was submitted that Bhardwaj does not stand for the proposition that the Tribunal can vary a decision that was soundly made. There was no jurisdictional error by refusing to revisit a decision that the Tribunal considered to be correctly made and it was not unreasonable for it to do so.

1. In Minister for Immigration and Citizenship v Li [2013] HCA 18 at [10], French CJ described the role of the Tribunal exercising a review under the Act as follows:

[10] The review function of the tribunals created by the Act is sometimes called "inquisitorial". That designation is a characterisation of their function which distinguishes it from adversarial proceedings. The word "review" "has no settled pre-determined meaning; it takes its meaning from the context in which it appears." As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate. There are similarities to the kind of review provided by the Administrative Appeals Tribunal ("the AAT"), described by Brennan J in Bushell v Repatriation Commission as:

"an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it."

As for the AAT, so too for the MRT and the RRT, the onus of proof relevant in judicial fact-finding has no part to play in administrative proceedings. There being no party to a review adverse to the applicant, no question of prejudice to a party other than the applicant can arise when the applicant asks the MRT to adjourn a review to enable additional information to be provided to the MRT. Nor can there be any prejudice to the tribunal although it is entitled to have regard to legislative objectives including timeliness in its processes.

1. The role of this Court is different. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17], Allsop CJ, Besanko and O'Callaghan JJ described the role of a Court exercising judicial review as follows:

[17]...an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 at [3] the Court said:

[3]...Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

1. In the amended application for judicial review, the Company has identified four grounds by which it seeks to establish jurisdictional error by the Tribunal. Those grounds identify the following issues:

(1) Did the Tribunal misconstrued reg 5.19(3)(e) of the Regulations?

(2) Did the Tribunal take into consideration irrelevant considerations?

(3) Did the Tribunal deny the Company procedural fairness; and

(4) Did the Tribunal err by refusing to reconsider the Decision when asked to do so?

5.19(3)

The Minister must, in writing, approve a nomination if:

(a)...

(e) the terms and conditions of employment applicable to the position will be no less

favourable than the terms and conditions that:

(i) are provided; or

(ii) would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent

work in the same workplace at the same location;...

1. In Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 at 381 McHugh, Gummow, Kirby and Hayne JJ said at [69] (excluding citations):

[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

1. Here the general purpose of reg 5.19 was explained by the Court in Singh 2017 by Mortimer J at [10] as follows:

[10]...Further, the legislative scheme intends there to be a high level of specificity around the grant of approval of nominations, with the criteria being directed at ensuring that the employment of Australian citizens and permanent residents is not unduly affected by the employment of a non-citizen in a particular position, as well as that the non-citizen is not going to be exploited by the prospective employer.

1. The policy guidelines produced by the Minister for the guidance of decision-makers also explain the intended operation of the regulation and aid the proper construction. Clause 7.5.4 of the policy provides that where the employer does not employ Australian citizens or permanent residents in the nominated occupation the market salary rate must be determined with regard to relevant market information which may include, but is not limited to, broader labour market data including job vacancy advertisements. The guidelines also emphasise that it is the nominators responsibility to demonstrate to the department that the terms and conditions of employment proposed for the nominee are reasonable, appropriate and on par with what they would provide to an Australian citizen or permanent resident to perform equivalent work in the workplace at that location.
2. The Tribunal did not misconstrue reg 5.19(3)(e) by seeking to compare market salaries with the 2013 contract of employment and the 2018 contract of employment. The task of the Tribunal was to assess whether the terms and conditions of employment of the employee were no less favourable than, the terms and conditions that are or would be provided to an Australian citizen or a permanent resident. That required the Tribunal to assess on the evidence provided by the Company, the terms of conditions that were provided to an employee that is an Australian Citizen or permanent resident in the same position with the Company. If there was no evidence, or not such a person employed by the Company, then the Tribunal was required to inquire more broadly as to relevant terms and conditions, including salary for the same position.
3. In the absence of evidence from the Company as to a like employee, the Tribunal was entitled to look to the broader market for terms and conditions. That is what it did. However, once provided with the PAYG summaries it was apparent that even if there had been a like employee, the nominated employee was not employed on the same terms and conditions as the 2013 contract of employment or the 2018 contract of employment. That was sufficient evidence to end the Tribunal's inquiries. Even if the Company had employed an Australian Citizen or permanent resident on the same terms as the 2013 contract of employment and the 2018 contract of employment, in the same workplace, at the same location, the employee was not employed on those terms. The employee was in fact employed on terms less favourable than the contracts of employment for performing the same work at the same location because of the repeated underpayments of salary. The regulation could not be satisfied.
4. The Tribunal reached the same conclusion at paragraph [34] of the Decision (CB 309). There was no error in reaching that conclusion on the evidence available. The findings were not illogical or irrational, unreasonable or lacking an evident and intelligible justification. The Regulations were not misconstrued by the Tribunal.
5. Even if the underpayments had been rectified or did not occur, on the proper construction of the regulation, the Tribunal was entitled to inquire as to the prevailing market salaries for a Chief Information Officer in the same location.
6. The language of the regulation when viewed as a whole and in context, does not lend itself to the construction contended for by the Company. The regulation does not require the Tribunal to consider only the performance of equivalent work in the same workplace at exactly the same location. As Raper J said in Singh 2023 at [143] "the geographical location is important". That is certainly so in regional Australia as her Honour also observed in that case. In Singh 2023, the Court was considering whether a nomination for employment in a regional town in South Australia could be substituted to another regional town in the same State. The employer had closed the workplace in the first location and sought to employ the employee in another workplace in a different township. The Tribunal found that the nomination did not comply with the position nominated because the location could not be unilaterally changed by the employer after approval of the nomination. The Court reached the same conclusion and found no error. Location in that case was construed to mean in the township of Goolwa, South Australia but it was not confined to the precise workplace per se. Further, it would give no utility to the regulation and would not comply with the purpose to construe location to mean the same workplace as is contended. The regulation specifies consideration of the workplace as well as the location. Here, the workplace was in Dandenong South, Victoria. Therefore, the Tribunal was required to consider the terms and conditions of employees in the same position (Chief Information Officer) employed in the locale of greater Dandenong. It did so by using market information obtained from websites for the greater Melbourne area. That was not an unreasonable or irrational inquiry, nor did the Tribunal consider irrelevant information. The Tribunal was not required to simply look at the Company's workplace for guidance as to the adequacy of the terms and conditions of employment. The regulation requires the Tribunal and decision-maker to objectively consider the terms and conditions of employment not only in the workplace but the locality of employment. That is what occurred here and in Singh 2023. There was no material jurisdictional error in the reasoning or conduct of the Tribunal.

1. This ground arises because the Company contends that the Tribunal misconstrued the regulation and considered broader market information about terms and conditions of employment, rather than workplace specific considerations. For the reasons explained, the Tribunal did not misconstrue the regulation and did not take into consideration irrelevant considerations or fail to consider relevant considerations. The Tribunal considered the evidence submitted by the Company in support of the nomination. That evidence included the 2013 contract of employment, the 2018 contract of employment, a position description, the title of the position and the PAYG summaries provided. The documents considered are recorded in paragraphs [9] and [14] of the Decision as are the circumstances in which they were provided to the Tribunal (CB 303-5).
2. The Tribunal invited the Company to comment on the discrepancies revealed by that evidence and the information obtained by the Tribunal regarding prevailing market salaries. The Company did not respond to the invitation to comment or provide the information that Mr Hughes offered to supply at the hearing on 5 December 2019. Mr Hughes is recorded as saying at the hearing that the employee was paid bonuses and commissions in excess of the base salary referred to in the contracts of employment. However, the PAYG summaries revealed that was not the case and to the contrary the employee had been substantially underpaid. The Company then made requests for more time, which the Tribunal reasonably accommodated until 31 January 2020. When that deadline passed and no information was forthcoming, the Tribunal then elected to decide the review on the material available and upon which the Company had declined to comment. There is nothing in the Decision that reflect the erroneous consideration of the evidence or consideration of irrelevant material. The conclusion reached in paragraph [34] of the Decision was open on the evidence and in accordance with the statutory task of considering whether the nomination complied with reg 5.19(e) of the Regulations (CB 309). There was no jurisdictional error.

1. The Company submits that it was denied procedural fairness because the Tribunal did not give it a reasonable opportunity to respond to the case against it. The chronology of events listed in the Decision, the Minister's written outline of submissions and herein show that not to be the case.
2. On 24 January 2020, the Tribunal refused to give the Company a further 21-day extension of time to respond to the requests for information and comments made on 5 December 2019, 16 December 2019 and 9 January 2020 (CB 291-2). The Tribunal did grant a further 7-day extension. The explanation for the need for more time, given by the solicitor for the Company, on 23 January 2020 was far from convincing. The email provided to the Tribunal by the solicitor said that an unidentified "delegate" of the Company who "issues" the company documents was on leave (CB 287). Given the previous involvement of Mr Hughes, the sole director and Managing Director of the Company and the role of the solicitor in previously providing documents, that was a curious statement to make in the circumstances. The Company then sought alternative legal representation from Mr Gros who also sought an extension of time (CB 293).
3. The requests made were not in the circumstances reasonable and were not unreasonably refused by the Tribunal. Mr Gros was informed on 4 February 2020 that the request for a further extension was refused (CB 297-8). The fact that Mr Gros did not communicate that to his client or respond, is not a matter for the Tribunal or a denial of procedural fairness to the Company.
4. In AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223, Justice Feutrill summarised the principles of when reasoning may be found to be irrational, unreasonable or illogical. At [72] his Honour said:

[72] A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision is one to which the decision-maker came was simply not open on the evidence or there is no logical connection between the evidence and the inferences or conclusions drawn.': SZMDS at [135]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30(4)]. However, 'to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality must be demonstrated "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to difference conclusions_"': DAO16_ at [30(5)] (and the authorities cited therein). Further, describing reasoning as irrational, unreasonable or illogical must be more than a mere emphatic way of expressing disagreement with it: Eshetu at [40] (Gleeson CJ and McHugh J):Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] (Wigney J, Allsop CJ agreeing). Likewise, it must mean more than that, on the material before the decision-maker, the court would (or would not) have reached the required state of satisfaction: S20/2002 at [9] (Gleeson CJ). In short, to meet the description of illogical, irrational or unreasonable reasoning in the relevant sense it must be a process of reasoning that results in the equivalent of an arbitrary or capricious decision.

1. The refusal by the Tribunal to grant a further extension of time to comment beyond 31 January 2020 was not unreasonable or a denial of procedural fairness in the circumstances of this case, especially so given the repeated requests for further time and the procedural history of the review. The Tribunal did consider all of the available evidence at the time of the Decision having given the Company a fair opportunity to supplement and comment on the evidence.

1. Having made the Decision, the only basis upon which to revisit or reconsider the reasoning was if the Tribunal reached its own conclusion that there was a material jurisdictional error that meant that the Decision was void, a nullity or "no decision at all" (see Bhardwaj at [51] and [53] per Gaudron and Gummow JJ).
2. In Bhardwaj the Tribunal did not receive an urgent facsimile message from the applicant's agent notifying it that the applicant was ill and could not attend the Tribunal hearing. The Tribunal dismissed the application for review for non-attendance. No application for judicial review was made but instead the applicant's agent wrote to the Tribunal asking for another hearing. The Tribunal granted that request, a further hearing was held, and the Tribunal made a decision revoking the cancellation of the applicant's visa. The Minister appealed to the Federal Court arguing that the Tribunal lacked jurisdiction to recall its decision. A single judge of the Federal Court disagreed. So too the Full Court of the Federal Court and then the High Court. The original decision had been made erroneously and therefore was not a decision effective in law and could be reconsidered.
3. The case here is quite different. This was not a case of a clear or obvious error of fact that required rectification or reconsideration. The Decision was based on available evidence and a failure by the Company to respond in a timely way to the Tribunal's request for comment. The subsequent correspondence from the Company and its solicitor did not identify jurisdictional error by the Tribunal but sought instead to supplement the evidence after the time to do so had passed and to make further submissions about the application of the Regulations. In effect, the Company sought to relitigate the issues that had been determined by the Tribunal in the Decision. The power to revisit a decision does not extend to a decision of the Tribunal that is soundly made. There was nothing in the correspondence dated 17, 18, 20 and 24 February 2020 that raised a material error or an obvious denial of procedural fairness (CB 314-5, 325-7, 331-3, 352-4, 359-363 and 401-2). Accordingly, the refusal to reopen the application for review was properly and reasonably made.
4. In Bhardwaj at [52] Gaudron and Gummow JJ cited, with approval, the following passage from Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 861-2 (a decision of the Supreme Court of Canada):

[52] ''As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances...

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason, I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law.''

1. The flexibility referred to was appropriate for the facts considered in Bhardwaj but not for the facts in this case and the mere fact of a change in circumstances is not enough to displace the finality of the Decision.
2. Each of the grounds of review relied on by the Company are not made out and the answer to each question posed or issue identified in paragraph [83] above is, no. The amended application for judicial review filed 14 February 2025 is dismissed.

1. 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. This proceeding was heard at the same time as the application for judicial review in proceeding MLG961/2020 commenced by the employee and his immediate family. The same counsel and solicitors appeared in both matters and there were elements of duplication of submissions, evidence and general preparation. In these circumstances, I will hear the parties on the appropriate disposition as to costs before making any costs order.

1. The name of the second respondent is amended to Administrative Review Tribunal.
2. The time within which to commence the application for judicial review is extended pursuant to s 477(2) of the Act to 16 March 2020.
3. The applicant have leave to amend the application for judicial review in the form of the amended application filed with the Court on 14 February 2025.
4. The amended application for judicial review filed 14 February 2025 be dismissed.

I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.