Kartar Dhaliwal Pty Ltd v Minister for Immigration and Citizenship [2026] FedCFamC2G 91

1. By application filed on 10 June 2022, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 9 May 2022. The Tribunal affirmed the decision of a delegate (the delegate) of the First Respondent (the Minister) to refuse the application for approval of the nomination of a position under reg 5.19 of the

Migration Regulations 1994 (Cth) (the Regulations).

1. On 2 March 2018, the applicant lodged an application for approval of the nomination of a position under the Temporary Resident Transition Nomination stream in the occupation of Hair or Beauty Salon Manager (ANZSCO 142114) (the nomination application): CB 1-62. Ms Rajni Sood was identified as the nominee for the position (the nominee): CB 8.
2. On 23 April 2019, the nomination application was refused because the delegate was not satisfied there was a genuine need to employ the nominee in the nominated position.
3. On 13 May 2019, the applicant sought review of the delegate's decision: CB 234-235. While the application was awaiting a hearing before the Tribunal, the COVID-19 pandemic occurred. The nominator closed the business approximately from March 2020 to December 2020, and then again from late June to December 2021. The nominee also took maternity and parenting leave during this period.
4. On 6 September 2021, the Tribunal invited the applicant to provide updated and current information addressing the relevant criteria in regs 5.19(2)-(3) of the Regulations.
5. On 20 September 2021, the applicant provided to the Tribunal documents in response to the invitation to provide information: CB 245-344.
6. On 21, 22, and 24 March 2022, the applicant lodged with the Tribunal various additional documents in support of its application for review: CB 365-564.
7. On 25 March 2022, the applicant's director (referred to as the applicant in the Tribunal's reasons) appeared before the Tribunal by telephone, to give evidence and present arguments on behalf of the applicant: CB 565-569. The applicant was assisted by its representative. The hearing was also heard concurrently with the nominee's application for review of the decision to refuse the nominee the associated Subclass 187 visa.
8. At the hearing, the Tribunal granted additional time for the applicant to provide further information by 6 April 2022.
9. On 6 and 7 April 2022, the applicant provided to the Tribunal various additional documents in support of its application for review, including submissions: CB 580-650.
10. On 9 May 2022, the Tribunal affirmed the delegate's decision to refuse to approve the nomination application.

1. The issue before the Tribunal was whether the applicant satisfied the requirements for approval of the nomination under the Temporary Residence Transition Nomination stream as set out in regs 5.19(2) and (3) of the Regulations.
2. At [1]-[5], the Tribunal summarised the procedural history of the matter. At [6]-[18], the Tribunal summarised the evidence before it, noting that only the evidence it considered material had been expressly referred to in its reasons.
3. At [20]-[24], the Tribunal outlined the background of the applicant. Relevantly, at [20], the Tribunal explained:

The applicant operates a hair and beauty salon located at The Entrance on the New South Wales Central Coast. The applicant's main business activity as noted in the company's tax returns is Road Freight Transport. The applicant told the Tribunal that the hairdressing beauty business is an investment.

1. At [25], the Tribunal set out the requirement under reg 5.19(3)(i), that there was a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator's direct control.
2. At [27], the Tribunal expressed concerns regarding the applicant's claims that the business closed for two years due to mandatory government lockdowns. At the hearing, the applicant's director clarified that the business closures were due to limited clients and that 'staff were scared and did not want to work': at [28]. The Tribunal recorded its discussions with the applicant's director regarding the financial profile of the salon business and noted the applicant had not provided any supporting evidence to show the current financial position of the salon: at [29].
3. At [30], the Tribunal invited the applicant to respond to the delegate's decision that it was not satisfied the applicant demonstrated a genuine need for the nominee. It expressed its concerns that the nominee had not worked during the COVID-19 pandemic, notwithstanding she had the opportunity to do so: at [31]. The Tribunal put to the applicant's director that there was no evidence before it to support the level of business activity and financial viability of the applicant's hair and beauty business: at [31].
4. The Tribunal recorded the following at [32]:

The applicant told the Tribunal that in the past he has sponsored 3 to 4 hairdressers as an attempt to operate a stable business with long term staff. All these persons have now left, and the nominee is the only employee. The applicant is 100% focussed on the transport activities of his business and needs the nominee to manage the salon business and bring the business back to life. From his perspective the position is genuine, and he is struggling to get staff.

1. At [33]-[34], the Tribunal discussed with the applicant's director how the salon business operated in the absence of beauticians and hairdressers. It noted the director's explanation that his wife worked as a hairdresser at the salon once or twice a week; that the nominee provided some beauty services; and that the applicant had undergone a recruitment process, with three recruits under consideration.
2. At [35], the Tribunal set out what it took into account when assessing whether there was a genuine need for the position:

In undertaking its assessment of whether there is a genuine need for the nominator (applicant) to employ the nominee to work in the position, the Tribunal has considered a number of factors, including the nominee's employment history with the applicant, the financial performance of the hairdressing/beauty business, the staffing structure, the activities of the business and the scale of those activities.

1. At [36], the Tribunal also extracted the submissions dated 6 April 2022, where it was claimed that the business operated very well 'notwithstanding the very unusual years of 2020 and 2021'.
2. At [37], the Tribunal outlined that it was required to assess the requirements for approval of the nomination on the evidence before it at the time of its decision and stated that it was not required to make the applicant's case for it, nor accept uncritically any and all claims made.
3. At [38], the Tribunal found that the evidence showed that the applicant voluntarily closed its business outside of mandatory lockdowns and by its own evidence the business did not operate for two years. It considered that the personal circumstances of the nominee were not relevant to the question of whether there was a genuine need for the nominator to employ the nominee in the nominated position: at [39].
4. At [40], the Tribunal expressed its concern with the evidence showing that the applicant's business ceased to operate extensively throughout 2020 and 2021, and for the short periods that it did operate, the nominee was mostly absent. The Tribunal noted that whilst the applicant purported the business was successful prior to COVID-19, the applicant was unable to provide evidence at the hearing as to the financial details pertaining to the hair and beauty business. It noted that the applicant had not been able to provide 'concrete evidence' of the salon's level of activity, including details of bookings, the actual services provided, and the salon's revenue.
5. At [41], the Tribunal noted the delegate had considered whether the level of business activity of the hairdressing and beauty salon was consistent with there being enough management tasks to occupy a Hair or Beauty Salon Manager on a full-time basis.
6. At [42], the Tribunal took into account the applicant's submissions in respect of the recent employment of a hairdresser and beautician.
7. At [43], the Tribunal did not find on the evidence before it, the applicant had demonstrated that there was genuine need for the applicant to employ a paid employee to work in the position under their direct control, given the absence of concrete and persuasive evidence to support that after a two-year closure, that the level of business activity and staffing levels were commensurate with the requirement for a Hair and Beauty Salon Manager on a full-time basis.
8. Therefore, the Tribunal was not satisfied that the requirements of reg 5.19(3) had been met.

1. The originating application filed on 10 June 2022 advanced two grounds of judicial review.
2. On 21 October 2025, the applicant filed their written submissions. On 4 November 2025, the Minister filed their written submissions.
3. On 18 November 2025, at the hearing before this Court, Mr D Godwin of counsel appeared on behalf of the applicant. The Minister was represented by Mr T Reilly of counsel.
4. At the hearing, the Minister tendered the Court Book filed on 13 December 2022 into evidence, which was marked Exhibit CB1.

1. The application for judicial review advanced the following grounds (without alteration):

1. The Tribunal did not complete the review as the Tribunal has failed to address the whole of the case which the applicant was making.

Particulars

The Tribunal based its conclusion on the fact that the current level of staff and business did not justify a need for the nominee in the nominated position. However, that was not the only need which the applicant said the nominated position is responsible for/ is required for. The need was for the nominee to return the business to viability and then to continue to manage it.

2. The Tribunal failed to intellectually engage with critical evidence which might have made a difference to the outcome.

Particulars

The Tribunal did not engage with Mr Dhaliwal's evidence that he was 100% focussed on the transport activities of his business and needs the nominated position to manage the salon business and bring the business back to life.

1. By ground one, the applicant alleges that the Tribunal did not address the case the applicant was making, being 'the need for the nominee to return the business to viability and then continue to manage it'.

1. The applicant submitted that the Tribunal, in making its decision as whether there was a genuine need for the position, based its conclusions on the fact that the current level of staff and business activity did not justify a need for the nominee's position. It was contended that this was not the only need for which the applicant said the nominee's position was required. The applicant contended that the need was for the nominee to return the business to viability and thereafter continue to manage it. It was contended that the Tribunal took no account of this evidence in its reasons in finding that the nominee was not needed.
2. The applicant's submissions noted the statutory declaration and post hearing submissions from the applicant's director, where he stated he would pay the salon's costs in future and would support the business 'for as long as it takes for the business to resume its former position of good profitability'.
3. The applicant also drew the Court's attention to the following paragraphs in the Tribunal's reasons:

32. The applicant told the Tribunal that in the past he has sponsored 3 to 4 hairdressers as an attempt to operate a stable business with long term staff. All these persons have now left, and the nominee is the only employee. The applicant is 100% focussed on the transport activities of his business and needs the nominee to manage the salon business and bring the business back to life. From his perspective the position is genuine, and he is struggling to get staff.

...

35. In undertaking its assessment of whether there is a genuine need for the nominator (applicant) to employ the nominee to work in the position, the Tribunal has considered a number of factors, including the nominee's employment history with the applicant, the financial performance of the hairdressing/beauty business, the staffing structure, the activities of the business and the scale of those activities.

1. The applicant contended that the Tribunal failed to take into account the whole of the case which the applicant was making and that this amounted to a constructive failure to complete the review.
2. The applicant relied upon Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 197 ALR 389 (Dranichnikov), per Gummow and Callinan JJ at

[24]-[25], with Hayne J agreeing at [95], which held that a decision-maker's failure to respond to a 'substantial, clearly articulated argument relying on established facts', can amount to a failure to afford procedural fairness or a constructive failure to exercise jurisdiction.

1. In respect of ground one, the Minister contended that the concept of a 'genuine need for the nominator to employ the person' pursuant to reg 5.19(3)(i), must be based on the objective facts of the business and not solely based on a statement from the nominator that they would employ the person 'for as long as it takes'. It was submitted that the Tribunal correctly focussed on the business activity and staffing levels of the salon in finding that, at the time of its decision, the evidence did not indicate there was such a need. The Minister referred to the Tribunal's finding at [40], that the applicant had not provided 'concrete evidence to support the salon's level of activity'.
2. The Minister submitted that the Tribunal at [32], recorded the director's statements about wanting to bring the business 'back to life', however, the Tribunal was entitled to focus on the objective facts concerning the salon's level of business activity and need for employees, when determining whether there was a 'genuine need'.
3. It was submitted that the director's desire to employ the nominee could not satisfy the requirement of a 'genuine need' pursuant to the circumstances identified by the Tribunal at [41]-[43], that the salon was adequately staffed for the level of business it currently had. It was contended that the Tribunal did not overlook the applicant's case but properly rejected it.

1. The particular issue for determination before the Tribunal was whether there was a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator's direct control as required by reg 5.19(3)(i) of the Regulations.
2. As submitted by the applicant, a failure to consider 'substantial, clearly articulated arguments relying on established facts' can result in jurisdictional error: Dranichnikov at [24]-[25].
3. What is required to demonstrate proper consideration of submissions or arguments of substance was helpfully explained in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1) per Kiefel CJ, Keane, Gordon, and Steward JJ at [24] to [26], in which the High Court stated:

[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decisionmaker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[26] Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised".51 That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

[footnotes omitted]

1. The applicant contends that the Tribunal failed to consider the whole of their case and in particular, the representations made by the applicant's director that there was a genuine need for the nominee to return the business to viability and thereafter continue to manage it.
2. At [7], [9]-[11], [15], and [16], the Tribunal set out details of material provided to it in support of the review. There is no suggestion that the Tribunal failed to record any of the written material provided to it. At [17], the Tribunal expressly stated that it had considered the evidence and submissions provided to it on behalf of the applicant.
3. Turning to the Tribunal's reasons at [32], the Tribunal recorded the director's evidence that he was '100% focused on the transport activities of his business and needs the nominee to manage the salon business and bring the business back to life'. On this basis, it cannot be said that the Tribunal overlooked or failed to have regard to representations made on behalf of the applicant regarding why the director wanted to maintain the employment of the nominee.
4. The Tribunal's reasons plainly demonstrate that it acknowledged and understood the representations made by the applicant's director as to why he wanted to employ the nominee. As noted at [37], the Tribunal was not required to uncritically accept the claims put forward by the applicant.
5. While the Tribunal did not expressly reject the evidence of the applicant's director as to why he wanted to maintain the employment of the nominee, it can be inferred from its reasons that the Tribunal preferred to give more weight to the objective evidence before it about the circumstances of the business when determining whether, at the time of its decision, there existed 'a genuine need for the nominator to employ the person' to work in the nominated position. The Tribunal was plainly entitled to do this.
6. Consistent with the reasoning in Plaintiff M1 at [24]-[25], the Tribunal was not obliged 'to make actual findings of fact as an adjudication of all material claims' and subject to the bounds of reasonableness and rationality, it was a matter for the Tribunal to attribute 'whatever weight or persuasive quality is thought appropriate'.
7. At [35] and [39]-[43], the Tribunal set out its reasons why 'on balance', it was not satisfied that there was a genuine need for the applicant to employ a paid employee in the nominated position. There was no error in the Tribunal at [35], focusing upon, or giving more weight to: 'the nominee's employment history; the financial performance of the hairdressing and beauty business; the staffing structure; the activities of the business; and the scale of those activities', when assessing whether the requirement of reg 5.19(3)(i) had been met.
8. At [36], the Tribunal had express regard to the submissions made by the applicant's representative, including the reference to the statutory declaration of the applicant's director which indicated he was financially committed to the salon business. This further demonstrates the Tribunal's consideration of the applicant's submissions with respect to the circumstances of the salon business and the director's financial commitment to its future operations.
9. In assessing the evidence before it, however, the Tribunal observed at [40] that:

... the applicant has not provided concrete evidence to support the salon's level of activity including details of bookings, actual services provided and revenue.

1. At [43], the Tribunal explained that it had carefully considered the evidence before it, but on balance, it could not be satisfied that the applicant had demonstrated a genuine need to employ a paid employee to work in the nominated position. The Tribunal reiterated its concern as to the absence of concrete and persuasive evidence pertaining to the activities of the business and its staffing needs.
2. The Tribunal's reasons demonstrate that it considered and weighed the evidence before it and therefore it was open to the Tribunal, for the reasons it gave, to conclude at [43], that on balance, it did not consider the evidence sufficient to support a finding that there was a genuine need to employ a paid employee in the nominated position of a Hair and Beauty Manager.
3. It has not been demonstrated that the Tribunal overlooked or failed to consider the representations made by the applicant's director that the applicant had a need to employ the nominee to manage the salon business and return it to viability. Nor has it been demonstrated that the Tribunal failed to consider the whole of the applicant's case. The Tribunal's reasons demonstrate that it considered the representations made and the evidence provided in support of the issue that arose in the review. Further, it cannot be said that the Tribunal's assessment or the evaluation of evidence before it, or the weight it attributed to particular evidence, was legally unreasonable, illogical, or irrational.
4. For these reasons, ground one does not establish jurisdictional error on the part of the Tribunal.

1. By ground two, the applicant contends the Tribunal failed to 'intellectually engage [with]' and address the applicant's evidence, which it recorded at [32], that its director was '100% focussed on the transport activities of the business and needs the nominee to manage the salon business and bring the business back to life'. The applicant contends that if this evidence was properly considered, it may have made a difference to the outcome of the review.
2. It is important to be mindful of the caution sounded by the High Court in Plaintiff M1 at [26] about a court, exercising judicial review function, unintentionally engaging in impermissible merits review when considering whether an administrative decision maker, in this case the Tribunal, had failed to engage in an 'active intellectual process' or give 'proper, genuine and realistic consideration' to a particular representation or evidence.
3. As explained in my considerations with respect to ground one, the applicant has not established any failure on the part of the Tribunal to properly consider the evidence given by the applicant's director that he needed the nominated position 'to manage the salon business and bring it back to life'. The Tribunal's reasons plainly demonstrate that it engaged with the submissions and evidence provided, concerning why the applicant's director wanted to maintain the employment of the nominee.
4. In the context of the issue that the Tribunal was required to consider, namely whether at the time of its decision, it was satisfied there was a genuine need for the applicant to employ a paid employee in the nominated position; I am satisfied that it sufficiently engaged with the representations made as to why the director wanted to maintain the employment of the nominee. It was open for the Tribunal to conclude, for the reasons it gave, that the evidence before it, on balance, was not sufficient to demonstrate that the applicant satisfied the requirement of reg 5.19(3)(i).
5. For these reasons, ground two does not establish jurisdictional error on the part of the Tribunal.

1. As none of the grounds or matters raised by the applicant establish jurisdictional error, the application for judicial review must be dismissed.
2. I will hear the parties as to costs.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.