Paxton Trade & Investment Pty Ltd v Minister for Immigration and Citizenship [2025] FedCFamC2G 1706

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicant in this proceeding applied for approval of a nomination on 30 July 2020.
2. On 22 November 2022, a delegate of the Minister refused the applicant's nomination application. The delegate found that the provisions of Regulation 5.19(4)(b)(i) of the Migration Regulations 1994 (the Regulations) had not been met.
3. Regulation 5.19(4)(b)(i) relevantly provided as follows:

(4) The requirements to be met for the nomination to be approved are as follows:

(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii) ...

1. The adverse information which the delegate found to have existed in relation to the applicant company was conduct relating to that company's business dealings.
2. The applicant sought review of the decision of the delegate by the Administrative Review Tribunal.
3. On 20 Dec 2024, the Administrative Review Tribunal (the Tribunal) affirmed the decision of the delegate.
4. At [19] - [27] of its reasons, the Tribunal relevantly found as follows:
   1. Having considered all of the evidence before it, the Tribunal is satisfied - from the delegate's decision and the information on the Department's file - that the applicant has been the subject of administrative action for a possible contravention of such a law, by a Department or regulatory body that administers or enforces the law, as on 31 August 2021 , it was the subject of a 5 year bar on being approved as a sponsor. This administrative action was imposed by the Department pursuant to s.140M(1) on the basis that a Department investigation indicated that the applicant had breached rr. 2.86 and 2.90 of the Regulations by contravening the law. As detailed above, the applicant's evidence included that the bar period was reduced but they nevertheless served a sponsor bar period of at least two years.
   2. In regard to the breaches, detailed above, resulting in the sponsor bar, the applicant stated that they did not conduct the practice of the business in the correct way as it was not profitable and so they backed out of the restaurants and cafe they purchased in order to see if they could get into another more profitable business.
   3. The Tribunal is satisfied that the action against the applicant in relation to the sponsor bar due to breaches of the law, constitutes 'adverse information' in relation to the applicant, as defined in rr.1.13A and 1.13B. Given this, subparagraph 5.19(4)(b)(i) is not met.
   4. The Tribunal then considered whether it may be reasonable in the circumstances to disregard the adverse information.
   5. The Tribunal notes that the Department's policy guidelines (as set out in its Procedures Advice Manual, PAM3) address the kinds of factors that might be taken into account in considering whether it was reasonable to disregard any adverse information. They include but are not limited to the following:
      • the nature of the adverse information;
      • how the adverse information arose, including the credibility of the source of the adverse information;
      • in the case of an alleged contravention of a law, whether the allegations have been substantiated or not;
      • whether the adverse information arose recently or a long time ago;
      • whether the applicant has taken any steps to ensure the circumstances which led to the adverse information did not recur; and
      • information about relevant findings made by a competent authority in relation to the adverse information, and the significance attached by the competent authority to the adverse information.
   6. While the Tribunal is not bound by departmental policy, the Federal Court has held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case, the Tribunal regards the policy as a useful guide to applying the legislation and considers it consistent with the legislation. In addition, the Tribunal considers that in the totality of the circumstances of this case, application of the policy is appropriate.
   7. The Tribunal expressed its concern regarding the cash payments to employees by the applicant. The applicant's response included that it was an affordability issue and that is why he keeps their payments "off the books".
   8. Having considered all of the evidence before it, the Tribunal does not consider it reasonable to disregard the adverse information (that the applicant was subject to a sponsor bar due to breaches of the law). Further, the Tribunal is concerned with the applicant's own evidence that they do not formerly employ staff or report any payroll to the Australian Taxation Office due to affordability issues. The financial statements provided by the applicant do not show any wages paid in 2023 yet they operate a food business and employ casual staff. As such the applicant appears to be again engaging in conduct that breaches the law.
   9. Given the above findings, the Tribunal is not satisfied that reg 5.19(4)(b) is met
5. It was open to the Tribunal to make the finding that it did. The Court finds that the Tribunal did not err in finding that the provisions of r 5.19(4)(b)(i) of the Regulations had not been met.
6. For those reasons, the Application for Review is without merit and ought to be dismissed. No jurisdictional error has been established on the part of the Tribunal.
7. Further, and in any event, the Applicant did not appear by itself or by a legal representative at today's hearing.
8. It is clear from Exhibit 2 that the applicant was duly given notice of the time, place, and date of today's hearing. It is further clear that the applicant has not demonstrated any reason why it could not have appeared by a legal representative at today's hearing.
9. The medical report provided by Mr Musson (the English name adopted by the applicant in proceeding number BRG160/2025) - he being a director of the Applicant in this proceeding - did not disclose any reason why any alleged injury said to have been suffered by him prevented him from appearing at today's hearing. In those circumstances, application was made by the lawyers for the first respondent for dismissal of the proceeding pursuant to the provisions of Rule 22.04(1)(a)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) by reason of the absence of the applicant at the hearing.
10. In circumstances where the matter was called and there had been no appearance by or on behalf of the applicant by 11:25 am today, it is appropriate that an order be made pursuant to such rule that the Application for Review filed on 12 March 2025 be dismissed.
11. And it is so ordered.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Egan delivered on 16 October 2025.