1900906 (Migration)

[2023] AATA 452

1900906 (Migration) [2023] AATA 452 (10 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Alessia Comandini

CASE NUMBER:  1900906

MEMBER:K. Chapman

DATE:10 January 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Skill Shortage (Class GK) visa.

Statement made on 10 January 2023 at 4:22pm 

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – occupation of Business Machine Mechanic – no approved nomination – relationship with an Australian citizen – family medical issues – referral for Ministerial Intervention – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, Schedule 2, cl 482.212

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs, on 24 December 2018, to refuse to grant the applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’). The applicant, [named], applied for the visa on 12 November 2018.

2. At the time of application, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Business Machine Mechanic (ANZSCO 342311).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations, because he was not the subject of an approved nomination as required. On 14 January 2019, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with the application for review.

4. The applicant appeared by telephone before the Tribunal on 13 October 2022 to give evidence and present arguments. He confirmed he was comfortable participating in the hearing by telephone. The applicant was represented in relation to the review by his solicitor (‘the representative’).

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. However, the Tribunal also refers this matter for the consideration of Ministerial Intervention.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl 482.212(1).

   Requirement for an approved nomination

7. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and it has not ceased.

8. At the review hearing, the Tribunal asked the applicant if he was the subject of a valid nomination in relation to his Subclass 482 visa application. He confirmed that he was not. Pursuant to the procedure in s 359AA of the Act, the Tribunal raised with the applicant the following information. The application by the nominator ([Business 1]) for approval of the nomination associated with the applicant’s visa application was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it has been finally determined. This means that the nominator’s application for the nominated position has not been approved.

9. The applicant was invited to comment on or respond to the above information, in accordance with the statutory requirements. He responded immediately, indicating that he came to [Town 1] (in regional New South Wales) in September 2016 to work for the nominator whilst holding a Working Holiday visa. Thereafter, his boss agreed to nominate him for an employer nominated visa. The applicant outlined that he and the nominator utilised the assistance of an incompetent registered migration agent to lodge applications for nomination and for the Subclass 482 visa. The applicant indicated the agent subsequently disappeared after he had been paid a large sum. The applicant contends that the mistakes of this agent saw the application for nomination fail and thereafter his visa application refused. The applicant subsequently obtained a new representative, who remains on the record. The Tribunal has carefully considered the applicant’s response.

10. The representative contended that the earlier agent made technical errors in the application for nomination, particularly regarding Labour Market Testing (LMT). She advised the applicant had first worked for the nominator in 2016 and he remains working for the same employer, who still wishes to nominate the applicant for the Subclass 482 visa. The representative also outlined that the applicant is in a relationship with an Australian citizen, who has children with a rare medical condition. She requested that the Tribunal refer the applicant’s matter for consideration of Ministerial Intervention. The Tribunal offered the applicant time to lodge post-hearing submissions and evidence. Such submissions were received on 17 October 2022.

11. Following careful consideration of the evidence, the Tribunal is not satisfied there is an approved nomination of an occupation relating to the applicant, by a standard business sponsor, that has not ceased. Therefore, the requirements of cl 482.212(1) are not met.

12. For the reasons expressed above, the Tribunal finds that the requirements for the Subclass 482 visa in the Short-term stream have not been satisfied. No claims have been made in respect of the other streams for the visa and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams.

    MINISTERIAL INTERVENTION

13. The evidence before the Tribunal indicates the applicant is working in a regional area of New South Wales, as a Business Machine Mechanic (ANZSCO 342311), for [Business 1]. He has been employed by this employer for some years now. Indeed, the employer has attempted to nominate the applicant for the Subclass 482 visa, however, it appears a previous registered migration agent hindered these efforts (that agent has even offered to refund some fees charged). As indicated in the reference from [Employer A], dated 29 September 2022, the applicant is a key employee of the business, in a geographic location where it is difficult to find reliable workers. [Employer A] seeks to maintain the employment of the applicant.

14. Additionally, the applicant is in a relationship with a local Australian citizen, [Ms A]. She has provided a letter of support dated 30 September 2022. [Ms A] was widowed by a vehicle accident in 2018 and she has [number] young Australian citizen children. [Two children] suffer from Joubert Syndrome, resulting in them being legally blind and having difficulty with motor skills. The applicant is a significant support to these children, including driving them many hours to attend specialist medical appointments in Sydney, as attested in the reference of [Doctor A] ([from Hospital 1]) dated 30 September 2022. Further, the applicant greatly supports [Ms A’s] young son, including teaching him soccer and being a positive male role model. [Ms A] has also displayed great fortitude in maintaining employment [in education] for children with disabilities in the regional public education system.

15. The applicant requested the Tribunal to refer his case to the Department for consideration by the Minister pursuant to s 351 of the Act, which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to them, if the Minister thinks that it is in the public interest to do so.

16. The Minister has issued guidelines explaining the circumstances in which they may wish to consider exercising their public interest powers under s 351 of the Act. Those guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which are referred to the Department by a review Tribunal or which exhibit one or more unique or exceptional circumstances. Departmental policy concerning Ministerial Intervention notes as a relevant factor, strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit and considerations relating to an Australian citizen’s age, health and psychological state. Further factors include exceptional economic, scientific, cultural or other benefit which would result from the person being permitted to remain in Australia; or circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or where the application of relevant legislation leads to unfair or unreasonable results in a particular case.

17. The Tribunal considers the applicant to be an asset to his regional employer in the occupation of Business Machine Mechanic (ANZSCO 342311). Clearly, his employer wants to maintain the applicant’s services, noting also that in the employment location it is difficult to find reliable employees. Furthermore, the applicant is in a relationship with an Australian citizen and provides significant support to her Australian citizen children, two of which have a disability. Additionally, the Tribunal accepts that the application for nomination by [Business 1] (‘the nominator) was unsuccessful, in part, due to the erroneous advice of a former registered migration agent on the record. This has resulted in the applicant, a fully qualified Business Machine Mechanic, being unable to be nominated for a Subclass 482 visa by a regional employer who has a demonstrated need to employ him. The Tribunal considers this situation to produce an unfair and unreasonable result, which is to the detriment of not only the applicant and the Australian business that employs him, but also to his Australian citizen partner and her [Australian citizen] children.

18. The Tribunal has considered the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in PAM3. For the reasons outlined above, the Tribunal refers this case to the Department for the Minister’s attention. The Tribunal respectfully recommends that the Minister exercises the power pursuant to s 351 of the Act with regard to the applicant.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Temporary Skill Shortage (Class GK) visa.

    K. Chapman
    Member