Mango & Pamela Thai Restaurant Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 584

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

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Before the Court is an Amended Application filed on 21 February 2025, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 6 February 2020. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to approve the applicant's nomination of Mr Prawech Limpichotipong (Nominee) under s 140GB of the Migration Act 1958 (Cth) (Act) for a Temporary Business Entry (Class UC) (Subclass 457) visa (Visa).
2. This matter was heard concurrently with matter number MLG 673 of 2020, in which, by way of amended application filed on 21 February 2025, the Nominee and his de facto partner, Ms Urisaphat Thanasinthananan, seek judicial review of the Tribunal's decision dated 6 February 2020, affirming the Delegate's decision to refuse to grant them a Temporary Work (Skilled) (Subclass 457) visa.
3. Each of the above applications raise three identical grounds of review in relation to the respective decisions of the Tribunal.

1. The applicant is Mango & Pamela Thai Restaurant Pty Ltd.
2. The applicant owns and operates a Thai restaurant in Colac, Victoria (Restaurant).
3. The applicant's director and shareholder is Mr Pravuth Limpichotipong (Director).
4. The Director and Nominee are brothers and both citizens of Thailand.
5. The Nominee has worked in the Restaurant since 2014.
6. On 23 November 2013, the applicant applied for approval of a nomination for the Visa (Nomination).
7. On 29 October 2015, the Nominee was granted a Visa on the basis of the approved Nomination which would expire on 29 April 2017.
8. On 16 May 2016, the applicant was approved as a standard business sponsor by the Department of Immigration and Border Protection (Department), as it then was.
9. On 8 March 2017, the applicant again, applied for approval of a nomination for the Visa for the position of Café or Restaurant Manager under s 140GB of the Act with the assistance of a migration agent (Visa Application). The Visa Application included with it a number of supporting documents. The Nominee applied for the Visa concurrently.
10. On 7 April 2017, the Department emailed the applicant's migration agent requesting further information in support of the Visa Application.
11. On 21 April 2017, the applicant's migration agent provided the further information requested by the Department.
12. On 19 December 2017, the Delegate refused to grant the application for approval to nominate the Nominee for the Visa on the basis that the applicant did not satisfy reg 2.72(10) of the Migration Regulations 1994 (Cth) (Regulations) (Delegate's Decision).
13. On 22 December 2017, the applicant applied to the Tribunal for review of the Delegate's Decision with the assistance of a migration agent.
14. On 21 May 2019, an officer of the Department provided to the Tribunal information received on the Border Watch Allegations and Referrals Team web form on 29 March 2019. The information contained allegations that, amongst other things, the applicant had been employing people on "holiday visa" (Adverse Information). The Adverse Information was accompanied by a certificate dated 21 May 2019 which notified the Tribunal that s 376 of the Act applied to the Adverse Information (Certificate). The Certificate indicated that disclosure of the Adverse Information would be contrary to public interest because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. The Tribunal did not inform the applicant of the existence of, or the content of, the information covered by the Certificate.
15. On 22 January 2020, pursuant to s 359(1) of the Act, the Tribunal emailed the applicant's migration agent inviting the applicant to provide information indicating that the applicant met the criteria required pursuant to reg 2.72 of the Regulations (22 January Letter). In the 22 January Letter, the Tribunal stated that if the information was not received by 5 February 2020, the applicant may apply for an extension of time, or in its absence, a decision on the review may be made without taking further action to obtain such further information.
16. On 6 February 2020, the Tribunal affirmed the decision of the Delegate to refuse to grant the application for approval to nominate the Nominee for the Visa.
17. On 10 February 2020, the applicant's migration agent provided additional information to the Tribunal in person. On that same day, the Tribunal notified the applicant of the decision to affirm the Delegate's Decision on 6 February 2020. Further email correspondence was received by the Tribunal from the applicant's migration agent later that day providing further submissions, including the contention that the applicant's migration agent had contacted the Tribunal by telephone on 7 February 2020 advising that further information had been provided digitally and that he sought an extension of two weeks (Further Submissions).
18. On 12 February 2020, the Tribunal emailed the applicant's migration agent advising that it had received the applicant's Further Submissions dated 10 February 2020 and provided those to the Member. The Tribunal advised that the Member had decided not to reopen the case as its decision had been made on 6 February 2020. Later that same day, the applicant's migration agent responded, submitting that the applicant had been deprived of natural justice, among other things.

1. The Tribunal issued its statement of decision and reasons on 6 February 2020 (Tribunal Decision).
2. At paragraph [7] of the Tribunal Decision, the Tribunal identified that the issue was whether the applicant met the requirements for approval of the Visa Application under reg 2.72 of the Regulations. The Tribunal further noted that all requirements must be met.
3. At paragraph [8] of the Tribunal Decision, the Tribunal set out that reg 2.72(10)(f) required that the position associated with the nominated occupation was genuine. The Tribunal referred to the Delegate's Decision, noting that the approval was denied on the basis that the Delegate found that the nomination had been lodged to facilitate a migration outcome as opposed to filling a genuine skill shortage, consequently making the nominated occupation not genuine. Accordingly, the Delegate found reg 2.72(10)(f) was not satisfied.
4. At paragraph [9] of the Tribunal Decision, the Tribunal referred to the correspondence dated 22 January 2020, where the Tribunal invited the applicant to provide information that would indicate that the applicant met the criteria required pursuant to reg 2.72 of the Regulations, including information demonstrating that the position associated with the nominated occupation was genuine. The Tribunal noted that the applicant had not provided information within the prescribed period and consequently, the information the Tribunal had before it was not current and the Tribunal was required to be satisfied that the requirements were met at the time of the decision.
5. At paragraphs [10] - [11] of the Tribunal Decision, the Tribunal found that when considering the "limited and outdated material" before it, it could not be satisfied that the position associated with the Visa Application was genuine and, as such, the requirement in reg 2.72(10)(f) was not met.
6. At paragraph [12] of the Tribunal Decision, the Tribunal found that it could not be satisfied that the applicant met the requirements of reg 2.72(10)(f) of the Regulations.
7. Accordingly, the Tribunal affirmed the Delegate's Decision not to approve the nomination for the Visa.

1. The applicant applied for judicial review of the Tribunal Decision on 27 February 2020 an filed an Amended Application on 21 February 2025.
2. The Amended Application contains the following grounds for judicial review (without amendment):
   1. The Tribunal denied the Applicants procedural fairness by failing to disclose to the Applicants the existence of the Secretary's certificate and notification under s 376 of the Migration Act 1958 (Cth) (Act) dated 21 May 2019.
   2. The Tribunal constructively failed to exercise its review jurisdiction by failing to consider the material before it to the relevant legal standard, including material provided by the Secretary under s 352(4) and evidence and submissions provided by the Applicants.
   3. The Tribunal exercised its power under s 348 of the Act unreasonably, in that it finalised its review one day after the deadline for the giving of information under s 359 without making any further attempt to contact the Applicants.
3. The applicant also filed the following in support of the Amended Application:

(1) an affidavit filed on 27 February 2020 annexing a copy of the Tribunal Decision; and

(2) written submissions filed on 21 February 2025.

1. The Minister filed a Response on 18 March 2020. The Response sought orders that the matter be listed for a show cause hearing and the application be dismissed and orders as to costs on the grounds that the applicant had not raised an arguable case and that the Tribunal's decision is not affected by jurisdictional error.
2. The Minister also filed written submissions and a further affidavit on 4 March 2025.

1. The hearing took place on 11 March 2025. On that occasion, the present application was heard consecutively with MLG 673 of 2020.
2. The applicant was represented by Mr White of Counsel. The Minister was represented by Ms Oppel, solicitor for Australian Government Solicitor.

1. A "privative clause decision" as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority's decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76].
2. The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [175].

1. By Ground 1 of the Amended Application the applicant contends that the Tribunal denied it procedural fairness by failing to disclose the existence of the Certificate. The applicant submits that the failure was material. The applicant submits that the threshold for materiality is "low" and requires no more than an applicant show "that as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded." It is submitted that it ought not be concluded that the Adverse Information could not have materially affected the outcome of the review simply because it is not referred to in the Tribunal's decision. The applicant submits that it is sufficient that there was information before the Tribunal that was adverse to the applicant.

1. The Minister concedes that the Tribunal did not disclose to the applicant the fact that the Secretary had notified it that s 376 applied to the Adverse Information and that this is a breach of the Tribunal's procedural fairness obligations. However, the Minister contends that the breach does not amount to jurisdictional error as it was not material. It is submitted that it did not deprive the applicant of the opportunity to give evidence or make arguments to the Tribunal and thereby deprive them of the possibility of a successful outcome.
2. The Minister further contends that even if the disclosure was made, there would be no impact to the outcome of the review due to the nature of the content of the Adverse Information.

1. The Certificate was issued pursuant to s 376 of the Act. That section, relevantly, provides as follows:

Tribunal's discretion in relation to disclosure of certain information etc.

(1) This section applies to a document or information if:

(a) The Minister:

(ii) has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or in the information, should not be disclosed; and

(ii) has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; or

(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information,.

(2) Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a) shall notify the Tribunal in writing that this section applies in relation to the document or information; and

(b) may give the Tribunal any written evidence that the Secretary thinks relevant about the significance of the document or information.

(3) Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.

1. The applicant submits, and I accept, that the failure of the Tribunal to disclose the Certificate denied the applicant an opportunity to make submissions as to the validity of the Certificate, as well as an opportunity to seek a favourable exercise of the discretion in s 376(3)(b). I do not understand the Minister to contest this submission.
2. The principles as to materiality are also not contested.
3. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT) at [7] the majority said:

In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred...

1. It is also useful to set out in full what their Honours said at [14] - [16]:

The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

(Footnotes omitted).

1. As summarised above, at paragraphs [8] - [11] of the Tribunal Decision, the Tribunal:

(a) set out that reg 2.72(10)(f) requires that the position associated with the nominated occupation is genuine;

(b) set out that in the 22 January Letter the applicant had been invited to provide information that addressed the requirements of reg 2.72, "including information that shows the position associated with the nominated occupation is genuine" but had not done so;

(c) found that based on "the limited and outdated material before the Tribunal" it was not satisfied that "the position associated with the nominated occupation is genuine"; and

(d) found that the requirements of reg 2.72(10)(f) were not met.

1. Paragraphs [8] - [11] appear under the heading "The position associated with the nominated occupation is genuine: r.2.72(10)(f)".
2. The Adverse Information is said to relate to "Prawat Limpichot Phong", stated to be known also as "Mango". The Adverse Information appears to allege that "Mango":

(a) employed three people on holiday visas and paid them 12.00 an hour;

(b) employed his partner Pam's sister for six months while she was in Australia improperly (allegation (b));

(c) says he is the manager of the restaurant but "lies" as he is the owner of the restaurant (allegation (c)); and

(d) lies to immigration and does not comply with the law.

1. The applicant submits that the Adverse Information is in relation to the Nominee and that the matters referred to in allegation (b) and allegation (c) above are directly relevant to the genuineness of the position. It is submitted therefore that allegations (b) and (c) are directly relevant to the issue that was before the Tribunal and as such, there is a realistic possibility that the Adverse Information affected the decision. The applicant concedes that there is no reference to the Adverse Information contained in the Tribunal's decision. However, the applicant submits:

(a) the Tribunal is not required to record every thought process;

(b) nothing ought be inferred from the absence of any reference to the Adverse Information given the sparseness of the Tribunal's reasons; and

(c) adverse material may have an indirect or direct effect on a decision-maker, in respect of which the applicant relies upon Cyber Computer Recycling & Disposal Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1286 (Cyber Computer).

1. The Minister contends that the Adverse Information is not in reference to the Nominee and submits that the Nominee's name is "Prawech", and the information is in relation to a person identified as "Prawat", which is the name of one of the Nominee's brothers. However, the Minister submits that even if the Tribunal had disclosed the Adverse Information to the applicant, it would not have affected the outcome of the review because the content of the allegation had no bearing whatsoever on the decision in fact made.
2. Whilst the material before the Court supports the Minister's contention that "Prawat" is the name of one of the Nominee's brothers, for the following reasons I consider that the Adverse Information is, in fact, in relation to the Nominee. Firstly, the Adverse Information variously refers to an individual named "Prawat" and "Prawt". Accordingly, the spelling of the individuals first name appears inconsistent and in the context of the Adverse Information as a whole is not, in my view, determinative. Secondly, the material before the Court indicates that the Nominee is referred to as Mango and the Nominee's partner is referred to as Pam. Thirdly, the position held by the Nominee is that of Manager and the references to getting "his visa fixed" and being "now on a bridging visa" appear consistent with the Nominee's circumstances. Fourthly, in the material before the Court the Nominee's mobile telephone number is the same as the mobile telephone number specified in the Adverse Information. Accordingly, notwithstanding the error in the name, I consider that the Adverse Information is in reference to the Nominee.
3. I accept, as submitted by the applicant, that allegations (b) and (c) contained in the Adverse information (as set out in paragraph [48] above) are relevant to the issue of the genuineness of the position. It is also the case that the sole criterion referred to by the Tribunal was whether the requirements of reg 2.72(10)(f) were met. I accept that there is nothing in the Tribunal's decision to suggest that the Tribunal had regard to the Adverse Information. However, as submitted by the applicant, the Tribunal is not required to set out every thought process and the decision is particularly brief. There was adverse material before the Tribunal that was relevant to the sole criterion considered by it, which was not disclosed to the applicant. In my view, that is sufficient. Consideration of Cyber Computer is not necessary.
4. In circumstances where:

(a) there is a low threshold for establishing materiality;

(b) the sole criterion considered by the Tribunal was the genuineness of the position;

(c) allegations (b), and most specifically (c), are relevant to the genuineness of the position; and

(d) the Adverse Information was before the Tribunal,

notwithstanding the absence of refence to the Adverse Information in the Tribunal's decision, I consider that there is a realistic possibility that had the Tribunal disclosed the Adverse Information to the applicant the Tribunal's decision could have been different.

1. Accordingly, I consider that the Tribunal's error in failing to disclose the Certificate was material and jurisdictional error is established.

1. Having found that Ground 1 establishes jurisdictional error on the Tribunal's behalf, it is not necessary that I consider the remaining grounds advanced by the applicant.

1. It follows from the above that a writ of certiorari be issued to quash the decision of the second respondent and a writ of mandamus be issued and directed to the Administrative Review Tribunal, requiring it to review the decision according to law.
2. The applicant seeks that the Minister pay their costs. I shall order that the Minister pay the applicant's costs in an amount to be fixed if not agreed.
3. The Minister seeks an order amending the name of the first respondent to "Minister for Immigration and Multicultural Affairs". I shall order accordingly.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.