1314876 (Migration)

[2016] AATA 4439

1314876 (Migration) [2016] AATA 4439 (23 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Haytham Al Masri
Ms Fatima Hassan
Mr Ali Al Masri

CASE NUMBER:  1314876

DIBP REFERENCE(S):  BCC2013/154421

MEMBER:Alison Mercer

DATE:23 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 23 September 2016 at 11:25am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 September 2013 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 31 January 2013. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) was seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Pastry Cook. This stream is designed for subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because he was not the subject of an approved nomination. The delegate noted that the Department had refused to approve a nomination application made by the applicant’s proposed employer, Seifeddine Enterprise Pty Ltd as trustee for the Seifeddine Family Trust (trading as La Porchetta, Werribee), on 18 July 2013. The delegate further found that the nomination made by the applicant’s employer did not meet the Direct Entry or Agreement validity requirements and thus the applicant could not meet the requirements for these streams. The delegate therefore refused to grant the applicant a subclass 186 (Employer Nomination) visa. The delegate also refused the subclass 186 visa applications of the second and third named applicants (the applicant’s wife and son) on the basis that they did not meet the secondary visa criteria to be family unit members of a person who held a subclass 186 visa, nor was there any evidence to suggest that they met the primary visa criteria in their own right.

6. The Tribunal received a review application from the applicants on 7 October 2013.  It was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Ms Latifa Al Houli, to be their representative and authorised recipient for correspondence for the purposes of the review.

7. On 6 August 2014, the Tribunal wrote to the applicants via their agent to invite them to provide information in writing by 20 August 2014 showing that (as required by cl.186.223(2)), the position to which the visa application related had a nomination approved by the Minister. 

8. On 20 August 2014, the Tribunal received a submission from the applicants’ agent advising that a new nomination application had been lodged with the Department by Seifeddine Enterprise Pty Ltd on 12 August 2014, and providing an acknowledgment letter dated 12 August 2014 from the Department confirming this.  The agent undertook to keep the Tribunal advised of the outcome of the new nomination.

9. On 24 September 2014, the applicants’ agent provided a copy of the nomination lodged with the Department by Seifeddine Pty Ltd and advised that she had requested expedited processing by the Department.

10. On 11 February 2015, the Tribunal wrote to the applicants’ agent seeking an update on the status of the nomination application. A further request was sent on 19 February 2015.

11. On 23 February 2015, the Tribunal received a response from the applicants’ agent in which she advised that the nomination had been refused on 1 December 2014, having been initially assessed (incorrectly) against the Temporary Residence Transition stream, and then assessed and refused against the Direct Entry stream criteria by the Department.  She further noted that she had been led to believe that she would be invited to provide additional material to the Department before a decision was made but was not given this opportunity.  The agent advised that a new nomination had been lodged by Seifeddine Enterprise Pty Ltd and that she was confident that it would be approved in due course by the Department.

12. On 27 February 2015, the Tribunal requested an estimate of the processing time for the new nomination from the applicant’s agent.  It reiterated this request on 23 March 2015.

13. On 26 March 2015, the applicants’ agent advised the Tribunal that the Department’s estimated processing time for the nomination application was 5 to 6 months.  She indicated that she hoped that it would be finalised in 3 months’ time and requested that a decision be deferred to enable the new nomination to be assessed by the Department.

14. On 21 May 2015, the Tribunal sought another update from the applicants’ agent. On 26 May 2015, the Tribunal received a response from her indicating that the Department had requested further information from them in relation to the nomination on 20 May 2015, which she anticipated providing to the Department by the end of that week.

15. On 11 November 2015, having heard nothing further, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing on 16 December 2015.  They were asked to provide any additional documents or information that they wished to rely upon by 9 December 2015.  On the morning of 16 December 2015, the applicants’ agent provided a medical certificate indicating that the applicant was unfit to attend the hearing, and asked that the hearing be rescheduled.  The Tribunal rescheduled the hearing to 21 December 2015.

16. The first named applicant appeared before the Tribunal on 21 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from his employer, Mr Ali Seifeddine, and legal submissions from the applicants’ agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

17. The first named applicant confirmed that he is still working for his nominating employer as the holder of a bridging visa with permission to work.  His subclass 457 visa expired about 2 years ago.  His employer still wants to retain him and he and his family wish to remain in Australia if possible. The first named applicant said that his son is 6 years old and about to finish his first year of primary school, while his daughter was born in Australia.  His wife is pregnant with their third child, a daughter who is due in June 2016.

18. Mr Seifeddine gave evidence confirming that the first named applicant is a valued employee and that his business has a genuine need for him as a Pastry Cook, as 50% of the menu at La Porchetta in Werribee involves pastry.  Mr Seifeddine said that the business experienced a downturn for a period while Werribee Plaza, in which the restaurant is located, was being renovated, but it has picked up considerably since mid-2015, when the refurbishment was complete.  Mr Seifeddine said that he runs several other businesses (including a number of Flames Charcoal Chicken outlets and a Degani café/bakery) and therefore relies heavily on the first named applicant to successfully operate La Porchetta in Werribee.  He stated that he would not have gone through the process of nominating the first named applicant for permanent residence if he did not value his work highly.  Mr Seifeddine also stated that it was very difficult to recruit and retain good Pastry Cooks, even though his preference was to hire locals, because of the long and hard hours of work involved in the hospitality industry.

19. The applicants’ agent Ms Al Haouli advised the Tribunal that the Department refused Mr Seifeddine’s third nomination of the first named applicant on 31 August 2015 on the basis that the delegate was not satisfied that the business had a genuine need for a Pastry Cook. Ms Al Haouli said that on behalf of the applicants and the employer, she had lodged a complaint with the Department’s Global Feedback Unit after receiving this decision, as they were all concerned about the inconsistency of decision-making by the Department in relation to Mr Seifeddine’s business, as the third nomination refusal decision was made on different grounds from the first 2 refusal decisions.  Ms Al Haouli provided the Tribunal with a copy of the complaint letter.  She indicated that she was advised to lodge a new nomination application with the Department, attaching the complaint letter.  She said that this was done in September 2015 and they are awaiting the outcome of this nomination application.  The estimated processing time is 6 months.  She asked that the Tribunal defer its decision until the matter was determined by the Department.

20. The Tribunal expressed concern that Ms Al Haouli had not notified the Tribunal of the outcome of the third nomination application, as it had requested her to do.  It also expressed concern that the request made to defer the decision would prolong the matter by at least a further 3 months, in the context of the visa applications having been made in January 2013, and where 3 nominations had been refused by the Department to date.  Ms Al Haouli argued that the most recent nomination application was well-supported with financial and other information and that she was confident that it would succeed this time.  She also confirmed that she had reviewed the Direct Entry visa requirements and was satisfied that the first named applicant could meet these if the new nomination was approved in that stream, rather than the original Transitional stream.

21. After some consideration, the Tribunal agreed to defer its decision until the Department made a decision on the pending nomination but indicated that it expected to be kept informed of the progress of the nomination and the outcome promptly, and that it anticipated no further deferral if the current nomination application was refused.

22. Over the ensuing months, the Tribunal made regular progress inquiries of both the applicants’ agent and the Department, and was advised on each occasion that the nomination application was still being processed.

23. On 19 September 2016, the Tribunal requested an update from the applicants’ agent as to the status of the nomination.  On 23 September 2016, the applicants’ agent advised the Tribunal by email that the nomination had been refused by the Department on 15 September 2016.  She attached a copy of the refusal decision, which indicated that the delegate was not satisfied that Seiffedine Enterprise Pty Ltd had the required financial capacity to pay the proposed salary to the applicant and thus found that the nominator did not meet r.5.19(4)(d).  The delegate noted that the financial statements provided to support the claimed financial position of the nominator were in fact for another business, with another Australian Business Number (ABN).

24. Also provided to the Tribunal was a submission from the agent, in which she argued (in summary) that:

    ·the applicant, in his role of Pastry Cook, was crucial to the operations of his nominating employer Seiffedine Enterprise Pty Ltd (trading as La Porchetta’s, Werribee) and had worked for the employer since 2010, initially as the holder of a subclass 457 visa and subsequently on a bridging visa pending the outcome of this review application;

    ·the previous nominations were affected by the fact that Werribee Plaza shopping centre, in which the nominating business was situated, undertook substantial renovations which decreased the size of the restaurant premises for some time, adversely affecting its turnover;

    ·at the time that the last nomination was lodged in December 2015, the renovations were complete and it was expected that the business’ financial position would significantly improve such that a new nomination would be successful;

    ·in the meantime, the principal of the nominating business changed his ABN and company name to reflect his new family trust, as his children were no longer dependent on him.  He was advised to do so by his accountant.  It was conceded that the new entity (Seif Enterprises Pty Ltd ATF La Porchetta Werribee Trust, ABN 74 711 301 463) was not the same as the entity that had lodged the last nomination with the Department (Seiffedine Enterprise Pty Ltd ATF Seiffedine Family Trust trading as La Porchetta Werribee, ABN 79 038 190 308), but it was noted that this was not due to a sale of the business or a change in the directors or shareholders;

    ·it was submitted that the employer was under the impression that the new business could be linked to the applicants’ visa review application and he did not know that the company details had to match the initial nomination application.  The employer was unaware that this change would be detrimental to the visa applications under review and would not have made this change if he had been fully aware of the implications, as he did not want to lose the vital services of the applicant;

    ·the employer continued to support the applicant, who had been working for him for over 6 years and whose visa application had been affected by a technicality (that is, a change in the company name and ABN even though it had the same director and operated the same business).  The applicant and his family (including 3 children, 2 of whom were born in Australia) had established lives here; and

    ·although it was conceded that the visa applications could not succeed due to there being no approved nomination, the Tribunal was requested to refer the case to the Minister for consideration of Ministerial intervention pursuant to s.351 of the Act.  It was submitted that the change in the employer’s business structure (resulting in the latest nomination refusal) was a unique or exceptional circumstance that should be taken to fall within the Minister’s Guidelines for Intervention.  It was further noted that the applicant continued to work full-time in the nominating business and played a vital role, that his wife was employed in the child-care sector and that the applicants had contributed to filling gaps in skilled employment and were not a burden on the Australian community.

25. The agent attached various documents in support of the above submissions, including recent BAS for the employer, company bank statements establishing ongoing salary payments to the applicant, interim financial statements for the company and letter of offer to the applicant dated 23 February 2015.

26. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The issue in the present case is whether the applicant is the subject of an approved nomination.

    Nomination of a position

    Temporary Residence Transition stream

28. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination).  For those purposes, the applicant must have been identified in the nomination as the relevant subclass 457 visa holder, and 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.

29. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·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.

30. At the time that the visa applications were initially lodged with the Tribunal, the applicant had been nominated by his employer under the Temporary Residence Transition stream (TRT stream).  However, the evidence before the Tribunal is that the Department refused the nominating employer’s TRT stream nomination on 18 July 2013 and no review of that decision was sought with the Tribunal.

31. Accordingly, the Tribunal finds that there is no approved nomination of the applicant in the TRT stream.

32. Therefore, cl.186.223 is not met.

    Direct Entry Stream

33. For applicants in the Direct Entry (DE) stream, cl.186.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(i) of the Regulations (that is, a Direct Entry nomination not specific to regional Australia), or under r.5.19(2) as it was prior to 1 July 2012 (that is, an Employer Nomination Scheme nomination). 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.

34. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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 r.1.13A and r.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.

35. The evidence before the Tribunal indicates that the nominations made by the applicant’s nominating employer in the Direct Entry stream were all refused by the Department, the most recent one having been refused on 15 September 2016.  No review of those decisions was sought at the Tribunal.

36. Accordingly, the Tribunal finds that there is no approved nomination of the applicant in the DE stream.

37. Therefore, cl.186.233 is not met.

38. The Tribunal notes that the applicants and their agent have not requested that the Tribunal defer its decision so that a further nomination application could be lodged with the Department, or so that a review application in respect of the latest nomination could be lodged with the Tribunal.  Even if they had, there is, in the Tribunal’s view, no reason to further defer making its decision on the matter under review. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[^1] and Manna v Minister for Immigration and Citizenship[^2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. Similarly, in the recent decision in Chen v Minister for Immigration and Border Protection [2016] FCCA 2351the Court upheld a decision by the Tribunal not to defer a review application regarding whether the applicant met the criteria in cl.457.223(4)(a) until the outcome of a pending nomination application. While that case relates to the subclass 457 visa category, it involved substantially similar issues to the present case, as the approval of the subclass 457 visa applications in that case were contingent on there being an approved nomination of the applicant. In this case, the Tribunal considers that the applicants have had a fair and reasonable opportunity to obtain an approved nomination of the applicant for the purposes of meeting the subclass 186 visa criteria.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

1. The applicant has only sought to satisfy the criteria for a subclass 186 visa in the Temporary Residence Transition and Direct Entry streams. No claims have been made in respect of the Agreement visa stream.  As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition or the Direct Entry stream have not been met, the decision under review must be affirmed.

2. In addition, the Tribunal must affirm the decision to refuse subclass 186 visas to the second and third named applicants (the applicant’s wife and son) as it finds that they cannot meet the secondary visa criteria to be family unit members of a person who meets the primary criteria for a subclass 186 visa, and there is no evidence to indicate that they meet the primary visa criteria in their own right.

   Request for referral for Ministerial intervention

3. The Tribunal notes that the applicants’ agent has requested that the Tribunal refer the matter to the Minister for consideration pursuant to the Ministerial Intervention powers under s.351 of the Act as it was submitted that the case raised unique and/or exceptional circumstances.  The Tribunal notes that the current Ministerial guidelines for s.351 intervention are set out on the Department’s website ( and further notes that there is no obligation on the part of the Tribunal to make such a referral, or if it does, for the Minister to act on that referral.

4. Having considered the circumstances of the case, the Tribunal does not find that the nominating employer’s change in business structure, resulting in the failure of the current nomination, to be a unique or exceptional circumstance, particularly since the employer was familiar with the nomination application process (having been through it a number of times with the benefit of migration advice from his agent).  The Tribunal notes the submissions of the applicants’ agent that the applicant is a valued long term employee of the nominating employer, and that the older applicants have been living in Australia for approximately 6 years, with 2 younger children (who are not included in this review application) having been born here, and that the applicant’s wife is also in employment in Australia.  However, it does not consider that these circumstances are sufficiently unique or exceptional to warrant referral to the Minister and it declines to do so.  The Tribunal notes that it remains open to the applicants and their agent to make a request for Ministerial intervention pursuant to s.351 of the Act directly themselves if they believe that they meet the Ministerial guidelines for intervention or otherwise have strong reasons for such a request.

   DECISION

5. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

   Alison Mercer
   Member