Federal Court of Australia

Osaka Foods Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 269

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an appeal from a decision of a judge of the Federal Circuit and Family Court of Australia (Div 2) which dismissed an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 June 2023:  Osaka Foods Pty Ltd v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 604.  The Tribunal had affirmed a decision of a delegate (the Delegate) of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) to refuse to grant the appellant a Subclass 482 (Temporary Skill Shortage) Visa pursuant to certain provisions of the Migration Act 1958 (Cth) (the Act).

2    For the reasons which follow, the appeal should be dismissed.  Despite the existence of several deficiencies in the reasons of the primary judge, it is undoubted that the Tribunal’s decision in respect of which review was sought was correct.  In this sense, the primary judge was ultimately correct not to identify the existence of any jurisdictional error in the Tribunal’s decision.

Background

The application before the Delegate

3    On 16 September 2019, the appellant, Osaka Foods Pty Ltd (Osaka Foods), filed an application with the Department of Home Affairs (the Department) seeking approval of the nomination of Mr Jaeman Chung, a South Korean national, and director and shareholder of Osaka Foods, for a Temporary Skill Shortage Visa pursuant to s 140GB of the Act.  The position in respect of which the application was made was identified as “Restaurant Manager”.

4    The application, inter alia, gave the appellant’s address as being the Q1 Building on the Gold Coast, which was the location of its business premises (a restaurant called Osaka Kaiten Sushi). It directed the Department to send all correspondence to the appellant’s migration agent, Ms Blud of Ramsden Lawyers, and, in particular, to her email address at that firm.  It was supported by submissions and materials that had been prepared by Ramsden Lawyers and which sought to substantiate the claim that the application satisfied the necessary conditions provided for by reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

5    On 9 October 2019, the Delegate wrote to the appellant to communicate its decision to decline approval of the nomination on the basis that they were not satisfied that the position associated with the nominated occupation (Café or Restaurant Manager (ANZSCO 141111)) was genuine:

I consider that the weight of the evidence indicates that the primary purpose of nominating this position is to facilitate the stay of the nominee [Mr Chung] in Australia, rather than to fill a genuine vacancy or skill shortage.

…

Decision

Subsections 140GB(2) and (3) of the Migration Act, relevantly provide that a nomination application must satisfy the prescribed criteria in order to be approved. The prescribed criteria relevant to this application are set out in regulation 2.72.

As the applicant does not satisfy subregulation 2.72(10) of the Migration Regulations, I am not satisfied that the applicant meets the prescribed criteria for approval of a nomination under the Temporary Skill Shortage (TSS) (subclass 482) visa program.

The application before the Tribunal

6    The appellant filed an application before the Tribunal to review the Delegate’s decision on 30 October 2019. As with the application before the Delegate, Ms Blud of Ramsden Lawyers was nominated as the appellant’s “authorised recipient” (of communications from the Tribunal).

7    On 31 October 2019, the Tribunal notified the appellant of the receipt of its application and sent that notification to Ms Blud’s email address as had been provided. The letter to Ms Blud relevantly provided:

Please note that the validity of your application has not yet been assessed. …

We have requested that [the Department] provide us with all documents and files which they consider to be relevant to your application.

It is important that you:

*    tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address).  If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details.  If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice; …

If you wish to provide material or written arguments for us to consider, you should do so as soon as possible. …

8    Two observations can be made as to that communication.  First, it was drafted upon the premise that the Tribunal did not have access to, and therefore had not yet considered, those documents and files that had been filed in support of the application before the Delegate (and, accordingly, invited the appellant to provide additional material should they “wish” to do so).  Second, at no time was the Tribunal informed of any change to the appellant’s contact details.

9    There is a paucity of information about what occurred in the interregnum between November 2019 and 2023, though it was accepted by the parties that for a substantial amount of that time, Australia endured the COVID-19 pandemic and the associated disruptions to human movement and trading.

10    On 26 May 2023, the Tribunal wrote to the appellant, care of Ms Blud at her email address, inviting it to provide a range of information for the purposes of the application for review (the s 359 Letter). The Tribunal identified that, in order to approve the application, it was required to be satisfied of the requirements for the visa sought “at the time of its decision”, including in respect of the specific criteria which the Delegate found had not been met.  To this end, the s 359 Letter noted that the Tribunal “now require[d] updated and current information addressing these criteria” and, accordingly, identified nine classes of relevant information to be provided:

1.     Information about company and business registration:

*    for example, a current and historical extract from the Australian Securities and Investment Commission (ASIC) that includes past and present office holders and shareholders (asic.gov.au); and

*    an extract from the Australian Business Register (abr.business.gov.au)

2.     Information about current approval as a Standard Business Sponsor or being party to an approved work agreement;

*    for example, a record of approval as a Standard Business Sponsor that has not lapsed or ceased

3.    Information about directly operating an active and lawful business in Australia, and the businesses’ financial position for at least the last two financial years;

*    for example, tax returns and business activity statements (BAS) that have been lodged with the Australian Taxation Office

*    financial statements prepared by an accountant/ financial advisor for the two most recently completed financial years that include a detailed profit and loss statement and balance sheet

4.     Information about the business’s organisational structure and where the position associated with the nominated occupation sits in relation to that structure;

*    for example an organisational structure chart that includes all of the current and proposed employees, their position title/duties and lines of reporting, whether they are full-time or part-time and whether they are an Australian citizen, permanent resident or visa holder

5.    Information about the roles and duties of the nominated occupation and how they correspond to the nominated occupation’s position description in ANZSCO;

*    for example, a description of duties and responsibilities for nominated occupation and how they fit within the structure and needs of the business

*    a comparison of how the roles and duties of the nominated occupation match or are different from the occupation description in ANZSCO (see www.abs.gov.au\ausstats\abs@nsf\mf\1220.0 and type the nominated occupation’s 6 digit ANZSCO code number into the ‘Search’ function)

6.     If the nominated occupation is subject to an inapplicability condition, information about why the condition does not apply in the circumstances of your case;

*    The instrument specifying the occupations, in force at the time the nomination application is made, provides the relevant inapplicability conditions that the nominated occupation may be subject to

7.    Information about the annual market salary rate for the nominated occupation, the nominee’s annual earnings and the terms and conditions of employment, including whether or not they are more favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same location;

*    The annual market salary rate for the nominated occupation must be determined in accordance with the method specified in the relevant instrument. Relevant information to give may include, for example, an employment contract or letter of offer that complies with relevant awards for the nominated occupation (if any) and also any salary surveys, advertisements, payroll reports and PAYG statements that relate to equivalent work in the same location

8.     Information about the current and previous visa status of the nominee, and, if applicable, their English language ability;

*    for example, the type of visas they held in Australia and when, and copies of any English language test results that the nominee has undertaken

9.     Information about whether you satisfied the labour market testing condition or information that you are an exempt applicant.

*    For example, information that was provided with the nomination about any redundancies or retrenchments of an Australian citizen or permanent resident worker in the four months before lodgement of the nomination application, information that was provided with the nomination about the advertising conducted (and any fees paid) within the period immediately before lodgement of the nomination application, or information about why the labour market testing condition does not apply in your case, for example, if it would be inconsistent with an international trade obligation of Australia as set out in a legislative instrument

Information that you give the Tribunal should be up to date and address all the relevant criteria.

(Emphasis in original).

11    The letter made clear that the information was to be communicated, in writing, by 9 June 2023, and, if that time limit could not be met, the appellant could, prior to that date, seek an extension.  To that, the Tribunal expressly warned that:

If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. The applicant will also lose any entitlement it might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.

(Emphasis in original).

12    The appellant did not respond to the request for further information.  There is no evidence explaining that omission, though it was asserted that, for some unknown reason, the email from the Tribunal was “never actually received” by Ms Blud at her email address.

13    On 18 June 2023, the Tribunal determined to affirm the Delegate’s decision.  In its reasons, it noted that the Delegate had refused approval on the basis that they were not satisfied that the position associated with the nominated occupation was “genuine”.  It proceeded to set out the circumstances of its having sent an email to the appellant requesting further information and the absence of any response.  In the result, the Tribunal found:

Position must be genuine and full-time

12.    Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

13.    The applicant has not provided updated and current information about the nominated position, the structure of the business and the financial circumstances of the applicant, and in these circumstances, the Tribunal is unable to be satisfied at the time of its decision, that the position associated with the nominated occupation is genuine. Accordingly, the requirements in r.2.72(10)(a) are not met.

14.    For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

The application before the Federal Circuit and Family Court (Division 2) (FCFCOA)

14    On 21 July 2023, the appellant applied for review of the Tribunal’s decision from the FCFCOA.  By its initial application, it sought review on several grounds, including a denial of procedural fairness and the existence of a legal error in the Tribunal’s application of the Regulations.

15    The appellant subsequently abandoned those grounds, instead asserting that the relevant error of the Tribunal was that it had, contrary to the obligation imposed on it by s 348 of the Act (as s 348 then was; but now note Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)), failed to “review” the decision of the Delegate in light of the “detailed evidence and submissions” that had been lodged by the appellant in mid-2019.

16    The application came before Judge Egan of the FCFCOA on 25 June 2024 and was dismissed some two weeks later.

The primary judge’s reasons

17    The primary judge found as follows (at [14] – [20]).  First, there was no merit in the submission that the Tribunal had failed to afford sufficient consideration to the existing material before it.  Second, there was no merit in the submission that the information requested by the s 359 Letter was unnecessary or unreasonable.  In this regard, his Honour noted that the appellant had failed to furnish the Tribunal with, amongst other things, contemporaneous evidence that established that it was a standard business sponsor (such evidence having been requested by item (2) of the s 359 Letter and being a statutory precondition to the approval of its nomination of Mr Chung: at [15], citing s 140GB(2)(ab) of the Act).  This dearth of evidence was considered fatal to the appellant’s case and underpinned his Honour’s finding (at [18]) that:

Quite apart from the applicant having failed to provide all other relevant information sought by the Tribunal, in the absence of the applicant establishing, by the provision of an updated sponsorship approval notice, that it had the relevant approval, the Tribunal was unable to be satisfied that the nomination application was genuine. In so finding, the Tribunal did not err.

18    Thereafter, his Honour held (at [19]) that, although the Tribunal did not consider the material before it in relation to the issues to be considered, it was not necessary for it to do so because the appellant had failed to overcome a preliminary hurdle –– namely, to establish that it was an approved sponsor –– and therefore could not possibly purport to nominate Mr Chung under the Act.  On that basis, it was held that the Tribunal had committed no jurisdictional error.

19    As an aside, and with respect, it is rather difficult to reconcile the first of his Honour’s findings in paragraph [19] with that to which he had arrived some five paragraphs earlier –– namely, that there was no merit to the submission that “there had been an insufficient consideration by the Tribunal of the existing material which was before it”:  [14].

The legislative framework

20    Section 140GB of the Act provides:

140GB Minister to approve nominations

(1)    A person who is, or who has applied to be, an approved work sponsor, or a person who is a party to negotiations for a work agreement, may nominate:

(a)    an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

(i)     the applicant or proposed applicant’s proposed occupation; or

(ii)     the program to be undertaken by the applicant or proposed applicant; or

(iii)     the activity to be carried out by the applicant or proposed applicant; or

(b)     a proposed occupation, program or activity.

(2)     The Minister must approve a person’s nomination if:

(a)    in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC—the labour market testing condition under section 140GBA is satisfied; and

(aa)    in a case in which the person is liable to pay nomination training contribution charge in relation to the nomination— the person has paid the charge; and

(ab)    in any case—the person is an approved work sponsor; and

(b)    in any case—the prescribed criteria are satisfied.

21    That section is to be read, for present purposes, with reg 2.72 of the Regulations (reg 2.72).  At the time the application came before the Tribunal, that regulation provided as follows (but now note the effect of the Migration Amendment (2024 Measures No. 1) Regulations 2024 (Cth)):

2.72 Criteria for approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

Application of this regulation

(1)     This regulation applies in relation to a person who:

(a)     is any of the following:

(i)     a standard business sponsor;

(ii)     a person who has applied to be a standard business sponsor;

(iii)     a party to a work agreement (other than a Minister);

(iv)     a party to negotiations for a work agreement (other than a Minister); and

(b)     under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

(i)     a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

(ii)     a holder of a Subclass 482 (Temporary Skill Shortage) visa;

(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

(2)     For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

Note:     In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

…

Nominated occupation

…

(10)     The Minister is satisfied that the position associated with the occupation is:

(a)     genuine; and

(b)     a full-time position.

22    The notes to clause 482.2 in Sch 2 to the Regulations identifies the following requirements in relation to the satisfaction of criteria for a subclass 482 visa, being the one presently in question:

482.2—Primary criteria

Note:    The primary criteria for the grant of a Subclass 482 visa include criteria set out in streams.

An applicant must satisfy the criteria in Subdivision 482.21 and also in one of Subdivisions 482.22 to 482.24.

The primary criteria must be satisfied by the applicant for a visa in a stream.

The other members of the applicant’s family unit who are applicants for a visa of this subclass must satisfy the secondary criteria.

All criteria must be satisfied at the time a decision is made on the application.

482.21—Common criteria

Note:    These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 482 visa.

…

482.212

(1)    Each of the following applies:

(a)    the nomination identified in the application has been approved under section 140GB of the Act;

(b)    the person who made the nomination was an approved work sponsor at the time the nomination was approved;

(c)     the approval of the nomination has not ceased under regulation 2.75.

23    Section 348 of the Act contained the duty of the Tribunal to review a decision of the Minister’s delegate.  It was drafted in the following terms:

348 Tribunal to review Part 5-reviewable decisions

(1)    Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision.

24    The parties before the Court accepted that the decision-maker in relation to such an application was required to be satisfied of the required criteria as at the date of the making of the decision:  see Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 315 – 316 [101].  That is, in any event, self-evident from the statutory requirements which require that the decision-maker is satisfied that the relevant characteristics exist:  see, eg, reg 2.72(10).

The present appeal

25    The single issue before the Court is whether the primary judge erred by failing to hold that the Tribunal had committed a jurisdictional error by failing to “review” the Delegate’s decision as required by s 348 of the Act.  Undergirding that ground is the assertion that the Tribunal had, in fact, committed the relevant error.  In these circumstances, it is appropriate to address the correctness of the Tribunal’s decision before turning to the primary judge’s reasons.

Did the Tribunal undertake a “review”?

26    It is undoubted that the obligation to “review” compels a consideration of the application, and all of its essential components or integers, on the basis of the material before the Tribunal:  see NABE v Minister for Immigration (No 2) (2004) 144 FCR 1, 18 – 19 [56] – [58], citing Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157, 180 [114] and Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136, 152 – 153 [42].  That task, it has been said, cannot be undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the applicant:  Minister for Immigration v MZYTS (2013) 230 FCR 431, 444 [38].  None of this appeared to be in contention.

27    In light of that understanding, counsel for the appellant advanced the following submission:

… the Tribunal was not entitled to declare itself “unable to be satisfied at the time of its decision, that the position associated with the nominated occupation is genuine”, without considering all of the material before it, and … this amounted to a clear failure of the Tribunal to deal with the case raised by the material and evidence.

(Emphasis added).

28    So, the submission went, the Tribunal was obliged to address each of the statutory requirements in respect of which it was to be satisfied –– such as reg 2.72 –– in light of the material which had been provided to the Delegate some years prior.  The difficulty with that suggestion is that it ignores the reality that the proceedings before the Tribunal were but one part of a broader decision-making continuum which had commenced when the appellant invoked the power in s 140GB of the Act: Re Easton and Repatriation Commission (1987) 6 AAR 558, 561; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, 271 – 272 [53].

29    In this respect, it was observed in Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 412 ALR 502 at 508 – 509 [25] that:

The Tribunal’s place in an administrative decision-making continuum necessarily means that the issues which emerge for its consideration will be shaped not just by the criteria specified in or with respect to the statutory power it is exercising afresh but also by the way in which those issues have been developed at anterior stages of the continuum.  Commencing with the original application for the exercise of the relevant statutory power, an applicant will have put forward particular reasons and material why that power ought to be exercised favourably. Some of these may have been accepted at primary decision-making level or perhaps on internal review within a department or agency, if there is provision for that, some not. The Tribunal’s own interlocutory practice and procedure is deliberately designed, via provision for an exchange of statements of facts, issues and contentions between applicant and respondent, to highlight the controversial issues of fact and law in the review. In turn, the identification of the pertinent issues may be refined by oral submissions made to the Tribunal in light of the totality of evidence following a hearing.  In these circumstances, it is only natural to expect that the reasons of the Tribunal for its final decision will be coloured and shaped by the way in which issues have evolved beforehand.

30    Here, as the Tribunal’s reasons make clear, on 26 May 2023, it had expressly and unequivocally sought updated material from the appellant in relation to the factors relevant to the application, and did so on the basis that it had to be satisfied of the relevant criteria at the date of its decision.  The only reasonable inference that explains why the Tribunal made such a request was that it considered the information that had been provided by the appellant in support of its application in September 2019 to be out of date for the purposes of making the relevant decision in 2023.

31    That is the impression conveyed by the mandatory language of the Tribunal’s request:

In order for the Tribunal to approve the business nomination application lodged by the applicant, it must be satisfied that the requirements in reg 2.72 … and s 140GB of the Act are met at the time of its decision, …

The Tribunal now requires updated and current information addressing these criteria.

(Emphasis added).

when compared against the hortatory drafting of the letter sent by the Tribunal to Osaka Foods at a time (31 October 2019) when it had yet to afford consideration to the relevant application:

Please note that the validity of your application has not yet been assessed. …

If you wish to provide material or written arguments for us [the Tribunal] to consider, you should do so as soon as possible.

(Emphasis added).

The language of the request in May 2023, of itself, strongly implies that the Tribunal had considered the relevant material and concluded that it was of no assistance in the resolution of the application given its age.

32    Such a conclusion is, as an aside, a perfectly natural one (and perhaps the only one), noting that reg 2.72 necessarily required the Tribunal to undertake several qualitative assessments in order to inform its state of satisfaction as to certain prescribed matters, including whether or not the position in question was genuine, in that it existed and was what it purported to be, as at 2023:  Pasricha v Minister for Immigration and Border Protection [2017] FCA 779, [45] – [46], citing Cargo First Pty Ltd v Minister for Immigration and Border Protection (2015) 298 FLR 138.

33    It follows that, in the context of the decision-making continuum, there is a strong implication that the Tribunal had had regard to the initial material provided by the appellant for the purposes of its consideration of the application, and had determined it to be out of date and irrelevant to the performance of its statutory duty.  Its desire, as evidenced by the s 359 Letter, was to be furnished with material upon which it could fulfill its obligation to be satisfied that the relevant criterion were met at the date of its decision. Unfortunately, no such material was forthcoming.

34    Whilst it is true that the Tribunal did not expressly state that it had considered the material filed by the appellant with its application on 16 September 2019 against the relevant criteria, it does not therefore follow that such consideration was not, in fact, given:  see, eg, ETA067 v Republic of Nauru (2018) 92 ALJR 1003, 1006 [13], citing Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, 605 – 606 [31].  That conclusion is, instead, one for the appellant to prove:  see, eg, SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109, [25]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48].  It did not do so.  No evidence was led nor submission made that militated against the conclusion that the Tribunal had considered the material filed by the appellant and found it to be irrelevant to the inquiry imposed by reg 2.72 as a consequence of the effluxion of time –– as noted, such conclusion would reasonably explain the sending of, and language adopted by, the s 359 Letter.

35    It should be noted that it was not suggested during the hearing that the Tribunal was in error in concluding that it was required to be satisfied of the relevant criteria as at the date of the decision.  Very appropriately, this was conceded by Counsel for the appellant.  That being so, there can have been no error by the Tribunal in turning its mind to the continuing relevance, if any, of the initially filed material, nor in its determination that the information was out of date.

36    It follows that it has not been shown that the Tribunal failed to consider the material before it in relation to the decision which it was required to make.  Whilst it is, perhaps, regrettable that the Tribunal’s reasons did not elaborate on the consideration afforded to the materials that were provided by the appellant in 2019, that does not, as the appellant’s submissions seem to assume, lead to the conclusion that the Tribunal neglected its duty to “review” under the Act.  That is particularly so in light of the manner in which the decision-making continuum has progressed.  For these reasons, the foundation of the appellant’s ground of appeal cannot be substantiated.

Materiality of any error committed by the Tribunal

37    Even if the Tribunal did commit an error in its treatment of the material initially filed with the application, in the unusual circumstances of the present case, there was no possibility that the decision which the Tribunal made could (realistically) have been different if that error had not, in fact, occurred.  In particular, the Tribunal could not have been satisfied that Osaka Foods was an “approved work sponsor”, being a condition to the approval of Mr Chung’s nomination under s 140GB(2)(ab) of the Act (excerpted above).  In that sense, any error committed by the Tribunal was not material: see, eg, Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 136 [35], 149 – 150 [79]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152, 155 – 157 [7] – [16] (LPDT).

38    For reference, the phrase “approved work sponsor” encompasses “standard business sponsors”:  reg 1.03 of the Regulations:  and is defined by the Act in the following terms:

approved work sponsor means:

(a)    a person:

(i)    who has been approved under section 140E as a work sponsor in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and

(ii)    whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or

(b)    a person (other than a Minister) who is a party to a work agreement.

39    The only material before the Tribunal in relation to the appellant’s sponsorship status, as at the time it made its decision, was a document titled “Notice of Decision – Sponsorship Approval Notice” (dated 29 January 2016), which disclosed that the appellant had received approval to act as a “Temporary Business Entry Standard Business Sponsor” for a period of five years from 29 January 2016.  Necessarily, that status had expired when the Tribunal sought the provision of updated information in May 2023.  Indeed, the second item of the s 359 Letter expressly requested information in relation to any:

… current approval as a Standard Business Sponsor or being party to an approved work agreement;

*    for example, a record of approval as a Standard Business Sponsor that has not lapsed or ceased

(Emphasis in original).

40    No additional information was provided on that topic, and no updated notice of approval was given.  That being so, any assessment undertaken by the Tribunal of the conditions imposed by s 140GB(2) of the Act (including the criteria in reg 2.72) as against the material that had been provided by the appellant in 2019 could only have rendered the conclusion that Osaka Foods had not established, at the date of the decision, that it was an approved work sponsor.  As such, it would have been required to reject the application as no other conclusion was open to it.

Ancillary submissions on materiality

41    At the hearing, Mr Poynder for the appellant indicated that there existed additional information which might have been provided to the Tribunal vis-à-vis the appellant’s sponsorship status as at 2023.  In his own words:

MR POYNDER: … Now, in my footnote to the submissions, I’ve made the point, if necessary – I don’t think we need to, but if necessary, we would seek leave to prove that we did actually have a current sponsorship at the time of the decision. In other words, after that sponsorship ran out, we obtained a further sponsorship prior to that sponsorship running out, which was current until 2025.

42    However, that is irrelevant.  The obligation of the Tribunal is to make the correct and preferable decision on the material before it:  Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419:  and, absent contemporaneous evidence of the appellant’s sponsorship status, the Tribunal could not have reasonably concluded that the appellant satisfied s 140GB(2)(ab).

43    But one need not go so far, says Mr Poynder, because the issue of the appellant’s sponsorship was not squarely in issue before the Tribunal.  That is incorrect.  As has been noted, information pertaining to the appellant’s status as either a standard business sponsor or party to an approved work agreement (being the two limbs of the Act’s definition of an “approved work sponsor”) was expressly sought by the Tribunal on 26 May 2023 in the s 359 Letter and, consequently, it was a matter upon which the Tribunal’s decision could reasonably turn.

44    As it was, the Tribunal did not need to consider the question of the appellant’s status, it having determined that the application failed because it had not shown that the position in question was genuine.  That, however, does not detract from the fact that in the absence of any additional material, it could not have satisfied itself in relation to this issue either.

45    It was also submitted by Mr Poynder that a recent decision of the High Court (LPDT) stood for the proposition that the Court could not consider anything other than the reasons for decision when considering the question of materiality.  That appeared, at least, to be the substance of his submission.  If so, it is cast at too high a level of generality.  As the majority made explicitly clear, the scope of the material to be considered is dependent upon the nature of the error:

[12]     Where the jurisdictional error alleged is one concerned with the process of the decision making, such as a denial of procedural fairness, what must be proved by the applicant will depend upon the precise error alleged to have occurred in the decision-making process, having regard to any relevant statutory provisions within the applicable legislative framework.  Examples of the types of evidence that have been sufficient for establishing the relevant facts in such cases include the appellate record, and evidence of the content of a document or information that was required to be provided as part of the decision-making process.

46    Here, the complaint was concerned with a failure, by the Tribunal, to undertake a review of the material before it.  Such an allegation immediately made the nature and quality of that material relevant, including any omissions in it.  That is because, where the issue is whether the decision could have been different, it is the absence of information before the Tribunal (from which the criteria in reg 2.72 could have been satisfied) that establishes that no other decision could have been made. It follows that, if the Tribunal had failed to undertake a review as required or failed to consider some of the material which was initially submitted in support of the application, as it could not have come to any other decision, any error was not material.

Was there evidence to support the conclusion that the nominated occupation was “genuine”?

47    Similar to the above discussion, the Tribunal could not have reached a different conclusion on the material before it that the occupation which was nominated in the application was genuine.

48    In its reasons, the Tribunal noted the Delegate had not been satisfied on the material before it that the position associated with the nominated occupation was “genuine”.  It then noted that it had written to the appellant seeking updated and current information on that topic.  It identified the manner in which the “genuineness” of the position was to be assessed, and then observed that the appellant had not provided any current information about the nominated position, the structure of the business and the appellant’s financial circumstances, such that it was not in a position to be satisfied that the position associated with the nominated occupation was genuine.

49    As identified by Ms Hoiberg for the First Respondent in her written submissions:

The Tribunal’s task as regards reg 2.72(10)(a) was to qualitatively consider whether the position was really what it purported to be. That required the Tribunal to understand matters such as the Appellant’s need for the position, the tasks undertaken by the position, the other employees employed by the Appellant and their tasks, and whether there was a genuine skills shortage which was to be filled by the position.

(Citations omitted).

50    In the absence of updated and current information about the position, including the appellant’s organisational structure and where the position sits within that structure, the then-current roles and duties of the nominated occupation within the appellant’s business and whether it is subject to any inapplicability conditions, the analysis required for the satisfaction of reg 2.72(10)(a) could not be undertaken in June 2023.  Indeed, whatever may have, in fact, been the position as to each of those matters in 2019, the Tribunal could not reasonably have been satisfied that that was still the case in 2023 (noting, inter alia, the intervention of the COVID-19 pandemic).

51    It follows that, in the circumstances, the Tribunal could not realistically have come to any other conclusion than that which it did in relation to the question of whether the position associated with the nomination was genuine, with the consequence that, if it had made any error in its decision, it was not material.

A comment on the primary judge’s reasons

52    The appellant criticised the primary judge’s reasons in a number of respects and, particularly the conclusion at [18] that “in the absence of the applicant establishing, by the provision of an updated sponsorship approval notice, that it had the relevant approval, the Tribunal was unable to be satisfied that the nomination application was genuine”.  With respect, it is not possible to detect the foundation for his Honour’s conclusion that the Tribunal was unable to be “satisfied” on that issue.  In truth, this difficulty goes beyond mere infelicitous expression and appears to involve a conflation of two issues. Much the same can be said for the inconsistency between the second and fourth sentences of paragraph [14] and the first sentence of paragraph [19].

53    Nevertheless, the Tribunal’s conclusion that it could not be satisfied that the position associated with the nominated occupation was genuine could not be undermined. Even if that were not so, the application could not have succeeded in the absence of any evidence that the appellant was an approved work sponsor at the relevant time.

54    That being so, and despite the difficulties with the reasoning of the primary judge’s, there is no appealable error warranting the setting aside of the orders made.

Conclusion on appeal

55    In the circumstances, the only conclusion that can be reached is that the appeal must be dismissed.

56    There is no reason why the appellant should not pay the Minister’s costs of the appeal.

Associate:

Dated:    31 March 2025