respondent. The Tribunal affirms the delegate's decisions refusing to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 visas; adjournment pending the nominator's judicial review...
Key principles
A Subclass 186 visa in the Temporary Residence Transition stream requires that the nomination be approved by the Minister under cl 186.223; where the Minister has not approved...
The Administrative Appeals Tribunal will not grant an indefinite or lengthy adjournment under s 363 of the Migration Act where, on the material before it, there is little or no...
Requests for Ministerial intervention must be supported by particularised evidence demonstrating unique or special circumstances; general complaints about prior representative...
Issues before the court
Whether cl 186.223(2) (that the Minister has approved the nomination) is satisfied so as to permit grant of a Subclass 186 visa in the Temporary...
Whether the Tribunal should adjourn the merits review indefinitely or for an extended period pending the outcome of a judicial review in the Federal...
Whether secondary applicants meet the visa criteria as members of the family unit.
Plain English Summary
The Tribunal affirmed the delegate's refusal of Subclass 186 visas because the employer nomination had not been approved by the Minister and the applicant ceased employment with the nominating employer in 2019. The applicants asked the Tribunal to adjourn the merits review pending the nominator's judicial review in the Federal Circuit Court and to allow time to prepare a Ministerial intervention request. The Tribunal declined an indefinite or lengthy adjournment, finding no persuasive evidence the court appeal had reasonable prospects of success, that delay would be protracted, and that the Tribunal must provide a timely review. The visa refusals were therefore affirmed.
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Deep Dive
1,966 words · generated 13/07/2026
What happened
This is a merits review of delegate decisions refusing Employer Nomination (Permanent) Class EN (Subclass 186) visas. The primary applicant, Mr Rajan Kanta Sigdel, sought a Subclass 186 visa in the Temporary Residence Transition stream as an Accountant. The nominating employer, Last Minute Grab Pty Ltd, had its nomination for the applicant refused by the Department (decision dated 14 March 2019), and a Tribunal review of that nomination was later affirmed (Tribunal case 1907542). The nominator commenced judicial review proceedings in the Federal Circuit Court (FCC ref SYG2072/2020). The applicant ceased employment with the nominator in 2019.
Whether there is a sufficient basis to support a Ministerial intervention request or for the Tribunal to assist in preparing such a request by...
Cited legislation
No linked legislation citations have been extracted yet.
The delegate refused the visa application on 20 April 2019 because the nomination had not been approved by the Minister, meaning cl 186.223, one of the statutory eligibility requirements for the Temporary Residence Transition stream, was not satisfied (see the Tribunal's statement that the nominated position has not been approved and cl 186.223 is not met [3]). The applicants sought review in the Tribunal on 1 May 2019. During Tribunal proceedings in April and May 2024 the applicants sought an adjournment of the merits review pending the outcome of the nominator’s Federal Circuit Court appeal and indicated an intention to prepare a Ministerial intervention request. The Tribunal decided on 11 June 2024 to refuse an indefinite or lengthy adjournment and affirmed the delegate's decision refusing the visas (Decision: Tribunal affirms refusal).
Key factual points underpinning the outcome:
The Minister had not approved the nomination for the applicant (cl 186.223 not met) [3].
The applicant had ceased employment with the nominator in 2019 and had no current employment agreement with the nominator since that time (Background para 6).
The nominator's judicial review proceedings were ongoing, with limited publicly available progress and directions hearings in 2020, but no material before the Tribunal demonstrating prospects of success (Background paras under Legal Process and 'Tribunal process').
The Tribunal’s central procedural decision was to refuse the requested adjournment under s 363 of the Migration Act and proceed to affirm the delegate's refusal of the visa application.
Why the court decided this way
Two legal predicates drove the Tribunal’s decision.
First, the statutory eligibility requirement: Clause 186.223 requires an approved nomination (and other related conditions) for a Subclass 186 Temporary Residence Transition stream visa. The Tribunal correctly identified that the nomination had not been approved by the Minister and that this criterion is not met. That legal fact is dispositive of the primary visa eligibility issue: without an approved nomination the visa cannot be granted [3]; accordingly the Tribunal found (Findings 1) that cl 186.223 was not satisfied.
Second, even if the applicant sought to stay the Tribunal’s merits review pending the outcome of the nominator’s Federal Circuit Court proceedings, the Tribunal exercised its discretion under s 363 to refuse the requested adjournment. The Tribunal applied the High Court’s instruction in Minister for Immigration and Citizenship v Li (2013) that administrative discretion, including whether to adjourn, must not be arbitrary and must be exercised reasonably and fairly having regard to surrounding circumstances [No adjournment 6]. The Tribunal weighed the following factors:
Duration and likely delay: The Court proceedings could be protracted (the Tribunal observed the matter could take one to two years, possibly up to five years) and there was no timetable guaranteeing rapid resolution [No adjournment 3].
Prospects of success: There was little or no information before the Tribunal indicating the judicial review had reasonable prospects of success; counsel and the representative made no submissions that the appeal is likely to succeed [No adjournment 4].
Applicant’s factual position: The applicant had not been employed by the nominator since 2019, and the position did not appear to be available to him, this undermined the relevance of the nominator’s appeal to his present eligibility [Findings 1; Background para 6].
Tribunal’s statutory duties: The Tribunal must conduct reviews that are fair, just, economical, informal and quick; an indefinite adjournment would run contrary to these statutory objectives [No adjournment 8].
On that basis, the Tribunal concluded that the adjournment should not be granted and that the review be determined: the delegate’s decision was affirmed.
The Tribunal also addressed requests relating to Ministerial intervention, noting that such relief requires particularised evidence of "unique and special circumstances" and that the applicant’s submissions lacked such particularity (they largely rested on alleged poor conduct by a prior migration agent, administrative delay, and unspecified family circumstances). The Tribunal found there was insufficient evidence to demonstrate a strong case for Ministerial intervention and that these grounds did not, by themselves, warrant adjourning the merits review for preparation of a Ministerial submission [Ministerial intervention request 7].
Before and after state of the law
Before this decision:
The statutory framework for Subclass 186 Temporary Residence Transition stream visas required an approved nomination (cl 186.223) and the Tribunal already operated under the principle that administrative discretion, including adjournments, must be exercised reasonably and in accordance with Li.
After this decision:
The Tribunal’s decision is an application of well-established legal requirements, not a change in the law. It reinforces two practical consequences for practitioners:
The absence of a Minister-approved nomination remains a decisive statutory bar to grant of a Subclass 186 TRT visa; the Tribunal cannot grant the visa where cl 186.223 is not met.
Party litigants should not expect an indefinite adjournment of a Tribunal merits review simply because an associated judicial review is pending; the Tribunal will refuse adjourning if there is no compelling evidence that the court proceedings have reasonable prospects of success, or where delay would be disproportionate or indefinite. The Tribunal’s application of Li emphasises that adjournments must be justifiable and proportionate to the circumstances.
This decision therefore clarifies procedural expectations: applicants must provide particularised evidence of the prospects of success of related litigation (or unique family/circumstances) before the Tribunal will tolerate lengthy delay. It underscores that the Tribunal will not simply wait on an employer’s litigation to determine a visa application.
Key passages with plain-English translation
"On the substantive issue whether there is an approved nomination, the Tribunal finds that the applicant is not the subject of a nomination which the Minister has approved." (Findings 1)
Plain English: The Minister never approved the employer’s nomination for this applicant. Because that approval is a mandatory requirement for this kind of visa, the applicant fails the basic eligibility test.
"It is not contested in this review that the nominated position has not been approved by the Minister and cl 186.223 of Schedule 2 of the Regulations is not met." (Nomination of a position 3)
Plain English: Nobody argued that the nomination had been approved. The relevant regulation (cl 186.223) therefore is not satisfied.
"The decision in Li and related Court authority means for this Tribunal that the exercise of discretion in relation to the adjournment request should not be arbitrary and requires a decision which is reasonable and fair based on the surrounding circumstances." (No adjournment 6)
Plain English: The Tribunal must exercise its power to adjourn sensibly, using information about the case. It cannot just put things off indefinitely.
"Taking everything cumulatively into account ... the Tribunal finds this is not a case where a lengthy and indefinite adjournment is warranted, whether for a few months or in excess of a year." (No adjournment 9)
Plain English: We considered all the facts, and the Tribunal will not delay the review for months or years to wait for the employer's court case.
"On the available information before the Tribunal, there is not sufficient evidence to demonstrate a strong case for unique and special circumstances as outlined by the representative." (Ministerial intervention request 7)
Plain English: The applicant did not present strong, specific reasons that would justify asking the Minister to intervene in their favour.
What fact patterns trigger this precedent
This Tribunal decision will be instructive where similar factual and procedural features are present:
An applicant relies on a nomination that has been refused or is the subject of further court review, and the Minister has not approved the nomination.
The visa application is in the Subclass 186 Temporary Residence Transition stream, where an approved nomination is a statutory precondition.
The applicant has ceased employment with the nominating employer and there is little or no evidence that the nominated position remains available to the applicant.
Applicants seek an adjournment of a Tribunal merits review pending related litigation without providing evidence of reasonable prospects of success or a clear timetable for resolution.
Applicants seek to rely on alleged misconduct by previous representatives, administrative delay, or family hardship as reasons for Ministerial intervention without particularised supporting evidence.
In such fact patterns, practitioners should anticipate that the Tribunal may refuse to adjourn and will determine the merits against the statutory predicate.
How later courts have treated it
This is a Tribunal decision issued on 11 June 2024. The decision cites and follows the High Court’s guidance in Minister for Immigration and Citizenship v Li (2013) concerning the exercise of administrative discretion. The text of this decision itself does not record any later appellate consideration of its reasoning. As an AAT decision, it is persuasive but not binding on courts. Any later treatment in courts or later Tribunal panels would need to be checked in subsequent reported decisions. This decision’s practical effect is primarily as persuasive administrative authority on adjournment discretion and the consequences of an unapproved nomination.
Still-open questions
How persuasive will this decision be where the applicant can demonstrate concrete prospects of success in the associated judicial review? The Tribunal here emphasised the absence of material showing prospects of success. A stronger evidentiary record regarding prospects might produce a different outcome.
How should applicants demonstrate that a nominated position is still available where the employment relationship has ceased? The decision treats cessation of employment since 2019 as a significant adverse fact. Specific contractual evidence or clear employer assurance may be necessary to counter that factor.
What particularised evidence suffices to establish "unique and special circumstances" for Ministerial intervention? The Tribunal declined to treat prior representative unprofessionalism and administrative delay as unique absent particulars. Future cases will illuminate the level and type of evidence required.
To what extent will the Tribunal consider the interests of secondary applicants where primary eligibility is dependent on a nomination under review? The Tribunal uniformly applied cl 186.311: secondary applicants derive eligibility only from a successful primary applicant. Practitioners should consider separate visa pathways for family members when primary eligibility is fragile.
What procedural tools should applicants use to obtain material about a nominator's court proceedings when the nominator's solicitors say they no longer act or the company is uncooperative? The Tribunal did not order subpoenas or take steps to obtain such material here; the question remains the best practice route to obtain court material or engage the nominator when direct cooperation is lacking.
Practical takeaways for practitioners:
Ensure an approved nomination exists before relying on the Subclass 186 TRT stream; if the nomination is not approved, do not expect the Tribunal to be able to grant the visa.
If pending litigation is relied on to justify postponement, assemble and present particularised material showing reasonable prospects of success and a realistic timeframe for resolution.
For Ministerial intervention, prepare specific, evidentiary material demonstrating unique and compelling family or humanitarian circumstances; mere complaints about prior representative conduct or delay are unlikely to suffice.
Where an applicant's employment relationship with a nominating employer has ceased, alternative strategies (search for a new sponsor, other visa streams, or ministerial approaches with strong evidence) should be urgently explored rather than relying on indefinite delay.
Judgment (19 paragraphs)
[1]
The applicant was nominated for the role of Accountant (General) by a registered corporation, Last Minute Grab Pty Ltd ("the nominator").The nomination was refused by a Department decision made 14 March 2019.
The nominator sought review of that decision. The Tribunal completed its review on 6 August 2020 and affirmed the Department decision. [1]
This related visa application for review has continued and has not been withdrawn. That is because the nominator filed an application in the Federal Circuit Court of Australia on 1 September 2020 appealing the nomination refusal[2] ("the appeal").
The visa applicants are awaiting the outcome of the appeal in order to pursue their applications. The visa applicants have not appealed the visa refusals. Instead, they anticipate that if the appeal were successful the Tribunal will then remit their visa applications for further consideration. They have asked the Tribunal to defer the review process for the visas pending the outcome of the appeal.
The visa applicants have conceded that the visas cannot be granted where the nomination has not been approved and this review application has no prospects without a successful outcome of the appeal, hence, they have sought adjournment of the hearing process to await the outcome.
The applicant ceased his employment as an accountant with the nominator in 2019. He continues to work however in other employment. There is no indication that the applicant's employment with the nominator is still available and he has no current employment agreement with the nominator since the employment ceased in 2019.
A check by the Tribunal of the appeal progress reveals a directions' hearing was conducted on 24 September 2020 by the Court. Orders were made by consent on 23 December 2020. The orders required the applicant to file and serve an amended application. No other details concerning progress of the appeal are available to the Tribunal.
[2]
The issue in the present case is whether the position to which the application relates is the position subject to an approved nomination: [cl.186.223(2)].
The applicants have raised an issue whether the Tribunal should adjourn its review process pending the outcome of the appeal.
[3]
Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.
In addition, this criterion also requires that:
the nomination has been approved and has not been subsequently withdrawn
there is no 'adverse information' known to Immigration about the person who made the nomination or a person 'associated with' that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information
the position is still available to the applicant, and
the visa application was made no more than six months after the nomination of the position was approved.
It is not contested in this review that the nominated position has not been approved by the Minister and cl 186.223 of Schedule 2 of the Regulations is not met.
It has also not been contested that the review cannot succeed were the appeal to fail and in circumstances where the Tribunal had agreed to await the outcome of the appeal.
[4]
For the reasons which follow, the Tribunal finds that the review should not be adjourned for an indefinite period, pending the outcome of the appeal.
This leads to the result that the decision must be affirmed.
[5]
Tribunal process - adjourned hearing - 4 April 2024
[6]
On 28 March 2024, the representative provided the Tribunal with detailed written submissions for an adjournment.
The submissions set out some background including the fact the visa applicants had not learnt of the decision in the Tribunal affirming the Department decision to refuse the nomination until 26 March 2024.
By way of further background, the Tribunal was informed that the director of the nominating company was also the visa applicants' previous migration representative. The director, Mr Uprety, had employed the applicant. When the nomination was refused, the director had informed the applicant of the outcome, and told him the decision would be reviewed in the Tribunal. The applicant said the conversation he had with the director was shortly after the delegate had refused the decision on 20 April 2019.
The applicant said he has been waiting since April 2019 to hear of the nominator's review outcome. He said he had not received any communication from the director and had been unsuccessful in attempts to contact him.
When the applicant received information of the Tribunal's hearing for this visa review decision, he appointed his new representative, his solicitor, who notified the Tribunal of his appointment on 28 March 2024. The same day, the representative sought an adjournment.
The adjournment request was a lengthy submission and in summary, pointed out that:
the applicant had only just become aware of the nomination decision being affirmed
the applicant had heard nothing since 2019 from the nominator/director
the applicant may have received "bad advice" for which he was not responsible, and that the previous representative had his migration registration cancelled and had shown "lack of professionalism" and "inaction"
the applicant may have also been misled by "other parties"
there was no disadvantage from a delay of up to 2 or 3 months to allow the applicant "to organise things", given the administratively slow progress for review over 3 to 4 years
the representative needed time to prepare for a hearing and had received only very short notice
[7]
On 17 May 2024, having heard nothing further from the applicant, the Tribunal invited the applicant to a resumed hearing. The invitation informed the applicant that the hearing "will consider events to date, any developments and/or progress, and any additional submissions from the applicant, in particular, concerning the matters raised in the previous hearing and afterwards."
At the resumed hearing, the applicant gave evidence that he was still looking for another accounting practice to employ him while currently working at Woolworths at Double Bay in Sydney.
He said since the hearing on 4 April 2024 he had followed up with ASIC to confirm the nominator had not been struck off. He said he has had no luck communicating with the director and the nominator has not shared any information with him. The applicant confirmed he had not been able to speak with Mr Uprety about the Judicial review.
The representative submitted that he had approached the nominator's lawyer who had no instructions to provide any information and could not do so. The representative was not aware of any developments on the court application. He said the visa applicants are not proceeding with the section 45AA conversion application any further, nor any subpoena. He had not at this stage progressed with any information for the Ministerial Intervention request.
The Tribunal confirmed with the applicant his understanding that he was unable to meet the requirement of an approved nomination, that he had disclosed no other prospects for employment, and had no other visa applications underway. There was no information about any progress for the judicial review and that the Tribunal could not wait indefinitely for an outcome, and where there was no submission as to prospects of the appeal. Furthermore, the director was not cooperative and was not communicating with him about the appeal, or indeed about anything. The applicant accepted the Tribunal's summary.
The Tribunal concluded the hearing on the basis that it did not appear any further lengthy adjournment was warranted, but the applicant could have a further period for submissions until 3 June 2024, for the Tribunal's consideration.
The representative indicated he was also intending that the Tribunal would receive his submissions for Ministerial Intervention which it might consider supporting.
[8]
On the substantive issue whether there is an approved nomination, the Tribunal finds that the applicant is not the subject of a nomination which the Minister has approved.
Therefore, cl 186.223 is not met.
[9]
The criteria for applicants who are members of the family unit of a person who satisfies the primary criteria are set out in paragraph 186.31 of schedule 2 to the Regulations.
Clause 186.311 requires that a secondary applicant is a member of the family unit where the primary applicant holds a Subclass 186 visa, and where the secondary applicant has made a combined application with the primary applicant.
As the primary applicant does not hold a subclass 186 visa granted on the basis of satisfying the primary criteria for the visa, the secondary applicants do not meet the criteria.
Accordingly, the secondary applicants do not meet cl 186.311.
[10]
On the question as to whether the Tribunal should exercise its discretion to further adjourn its process under s 363 of the Act, which provides that the Tribunal may adjourn the review from time to time, the finding is as follows.
The Tribunal has considered the basis of the submissions made by the representative and the applicant whether this is an appropriate case for an indefinite adjournment, that is, an adjournment until the judicial review outcome is known.
On the limited information available, it appears the application before the Federal Circuit Court still has some time to run, and could be a further 1 or 2 years from resolution. Present indications are that the Court may be delayed for up to 5 years from the time of application.
Having listened carefully to the applicant's submissions, there is little or no information that the appeal has reasonable prospects of success. The applicant himself is uncertain and the representative makes no submissions in that regard.
The Tribunal has endeavoured to take into account relevant factors for consideration upon an adjournment request. These include the history of the proceedings, whether the amount of the adjournment or extra time sought is reasonable, the reasons proposed by the applicant, and whether the adjournment is likely to produce further information likely to advance the applicant's circumstances.
The decision in Li and related Court authority means for this Tribunal that the exercise of discretion in relation to the adjournment request should not be arbitrary and requires a decision which is reasonable and fair based on the surrounding circumstances.
The situation for the applicant has not improved since 2019 with no contact from the nominator, no employment with the nominator, and none apparently likely in the future. The applicant is left to look for engagement in his chosen occupation elsewhere. He has however not found another sponsor, no other application is underway, and the prospects of success of the judicial review appear remote, particularly where the nominee will not be employed by the nominator and has not been so employed since at least May 2019.
The Tribunal has a statutory obligation to carry out its functions by pursuing the objective of providing a mechanism of review that is fair, just, economical, informal and quick. The applicant has had the benefit of legal representation, a substantial period since 2019 to resolve his personal circumstances, a further adjourned period since the Tribunal's hearing invitation and the opportunity to make submissions.
[11]
The applicant is not prevented from making his own request direct to the Minister. The applicant has not provided for the Tribunal's consideration further information to support such a request, notwithstanding the invitation to do so since the last hearing on 27 May 2024.
The applicant was invited to make further submissions by 3 June 2024. The Tribunal has waited until 11 June 2024, but nothing further has been forthcoming.
The applicants submissions made by the representative on 17 April 2024 concerning Ministerial Intervention make reference to "unique" and "different aspects" relevant to this particular applicant.
Those "aspects" are not identified or particularised.
The fact the applicant's previous representative may not have acted professionally and about which the applicant complains are not matters about which the Tribunal can have regard, and are not "unique" factors. The applicant alone is responsible for dealing with his representative and for seeking advice.
Nor is the fact there may have been some administrative concerns over delays and inability to obtain information. There is no information before the Tribunal about the applicant's family circumstances, other than the length of time spent in Australia and that the children have spent considerable time in Australia and one already has "permanent residency and possibly be citizen of Australia soon". The representative submits that there has been no fault on the part of the applicant who may have been "manipulated and wrongly guided".
It may certainly be a matter for the applicant to consider presenting a Ministerial intervention request, particularly because of factors concerning his family and their future, and the impact of having to return to Nepal. That is however a matter for the applicant to consider and on the available information before the Tribunal, there is not sufficient evidence to demonstrate a strong case for unique and special circumstances as outlined by the representative.
That is not to say however that the applicants, or any of them, should be discouraged from pursuing such application as they may be advised.
[12]
The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams.
As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.
[13]
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
[14]
186.223 (1) The position to which the application relates is the position:
[15]
(a) nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
(b) in relation to which the applicant is identified as the holder of a Subclass 457 ... visa; and
(c) in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
[16]
(3) The nomination has not subsequently been withdrawn.
[17]
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
[18]
(4) The position is still available to the applicant.
[19]
(5) The application for the visa is made no more than 6 months after the Minister approved the nomination.
Parties
Applicant/Plaintiff:
Minister for Immigration and Citizenship
Respondent/Defendant:
Li
Cases Cited (1)
Sigdel (Migration) [2024] AATA 2094 (11 June 2024)
AI Analysis
Outcomerespondent
Disposition:
The Tribunal affirms the delegate's decisions refusing to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 visas; adjournment pending the nominator's judicial review and additional time for Ministerial intervention submissions was refused.
the new representative wanted to obtain counsel's advice and assistance, including for provision of a subpoena for production of documents to the previous migration agent.
On 29 March 2024, the representative again requested the Tribunal consider an adjournment "for a couple of months". A further written submission was provided. This submission added to the previous day's submissions as follows:
that the Tribunal should await the outcome of a nomination decision from the Federal Circuit Court, in the absence of any information about those proceedings
time should be provided to consider prospects for the nomination decision on appeal, the applicant not being aware of the reasons for refusal and the grounds of appeal, and that the Tribunal exercise its discretion accordingly
that it would be unreasonable within the bounds of "legal unreasonableness", as emphasised in the decision in Minister for Immigration and Citizenship v Li (2013) 249CLR 332 at [76] and [85], not to grant an adjournment.
On 4 April 2024 at the hearing, the applicant confirmed he had not spoken with the director since 2019 and had effectively done nothing pending the outcome of the nomination review in the Tribunal. He said he had been told in 2019 he would be informed. He accepted what the director said because the director was also a migration agent. He agreed that he had known since May 2019 that his visa application was unsuccessful, but he had remained confident because the director told him the review would be pursued and he would be informed.
He said Mr Uprety had assured him the review had good prospects and would succeed and therefore the visas would also be approved. He said he also understood that the visas could not be approved unless the nomination was successful.
The representative agreed that he would provide the Tribunal with some further written submissions for consideration of the adjournment request following the hearing in order for the adjournment to continue for an extended period. He said he would use the time to gain further information about the nomination refusal and the appeal and so he could advise the applicant accordingly.
The Tribunal informed the representative it had a recent ASIC historical search which showed there was a strike of action in progress against the nominator. He was unaware of that position. The representative also submitted that he was considering a section 45AA conversion application, subject to advice from counsel. He also wanted an opportunity to speak with the solicitor now acting for the nominator.
At the end of the hearing, the Tribunal agreed to an adjournment and further directed the applicant to provide any further submissions by 18 April 2024, in order for the Tribunal to consider whether the lengthy adjournment proposed should be granted.
On 17 April 2024, the representative made further detailed submissions. The submissions included:
that it was for the Member to decide whether a further adjournment pending the judicial review was warranted
that the applicant has not had sufficient time to obtain advice and assistance and should have at least a further 2 to 3 months adjournment
the applicant required more time to communicate with the nominator and his representative as no documents have been made available concerning the appeal or for consideration whether the appeal might succeed
the subpoena question was not resolved and the applicant did not have access to documents or information held by the Department or the Tribunal about the nominator or the nominator's proceedings
the applicant is unable to comment on prospects for the judicial review outcome as the employer's legal representative is not communicating and has informed the representative that the nominator's lawyer "does not act for the company anymore"
the applicant has no further documents in support of proposed investigations for advice purposes and cannot comment on "whether there is prospective of success" for the appeal; the submission notes that the company is not being struck off, in accordance with the most recent ASIC information as at 17 April 2024
the applicant is still considering a section 45AA application.
Finally, the applicant intends to make a Ministerial Intervention request and needs time to put that together. The submission included a short summary of the reasons for such request.
On conclusion of the submission, the applicant states he "will leave it to the Member to finally decision on what would be an outcome in this matter". The Tribunal interprets this to mean the Tribunal deciding whether to continue the adjournment, or not, for the requested period of "2 or 3 months".
The Tribunal has waited until 11 June 2024, but has received no further submissions from the applicants.
Taking everything cumulatively into account and considering the information which has been made available by the applicant and the representative, the Tribunal finds this is not a case where a lengthy and indefinite adjournment is warranted, whether for a few months or in excess of a year.
The applicant has already had a significant period since the initial hearing on 4 April 2024, which is the period initially sought for the adjournment for "2 or 3 months". There has been little or no change in the information available in that period and as at the time of this decision (11 June 2024).
The Tribunal therefore declines to grant the request for a further adjournment or extension of time until the outcome of the nominator's Judicial review.