1922515 (Migration)

[2023] AATA 2380

1922515 (Migration) [2023] AATA 2380 (2 February 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Ms Sharon Harris (MARN: 9501060)

CASE NUMBER:  1922515

MEMBER:  Peter Newton SC

DATE AND TIME OF

ORAL DECISION AND REASONS:          2 February 2023 at 2:00 pm (NSW time)

DATE OF WRITTEN RECORD:                3 March 2023 PLACE OF DECISION:   Sydney

DECISION:The Tribunal affirms the decision under review and refers the case to the Department of Home Affairs for consideration of intervening pursuant to the public interest powers conferred by section 351 of the Migration Act 1958 (Cth)

Statement made on 3 March 2023 at 11:56am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – retail manager – business sold between application for review and hearing, with nominee continuing in position under new owners – combined hearing of nomination and visa reviews – unique or exceptional circumstances not anticipated by legislation – if not for sale, nomination would have been approved – nominee’s performance of position, value to business and community activities in small town – health and psychological state – Australian-born child – delay in scheduling hearing – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 351
Migration Regulations 1994 (Cth), r 5.19(4)(b), Schedule 2, cl 187.223

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.

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 July 2019 (Department’s Decision) refusing to approve a nomination under reg 5.19 of the Migration Regulations 1994 (Cth) (Regulations).

1. At the hearing on 2 February 2023 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The applicant applied for approval on 9 January 2018. The requirements for approval of the nomination of the position in Australia are found in reg 5.19 of the Regulations, which contain two alternative streams: Temporary Residence Transition Nomination stream and the Direct Entry Nomination stream. If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).

1. In this case the applicant has applied for approval of the nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

1. On 24 July 2019 the delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(h)(ii)(D) and 5.19(4)(h)(i) as the delegate found the tasks to be performed in the nominated position did not correspond to the tasks of the occupation specified in the relevant instrument.

1. The applicant appeared at the hearing before the Tribunal by audio visual link on 2 February 2023. The applicant is [Company 1]. [Mr A], the director of the applicant, appeared at the hearing and gave evidence. The applicant is represented by Ms Harris, who also appeared at the hearing, provided comprehensive and helpful written and oral submissions.

1. On 11 October 2021, the applicant sold his business, in which the nominated employee has worked since 2016, to [Company 2]. The directors of [Company 2], who I will refer to as [Mr and Mrs B], appeared at the hearing and gave evidence. Ms Harris also represented [Company 2].

1. The hearing of application by the applicant was heard concurrently with the hearing of an application by the nominated employee, [Mr C], and his wife, [Ms D], who is a dependent applicant. Evidence on one application was evidence in the other. [Mr C] and [Ms D] also appeared at the hearing and gave evidence. The applicants adduced evidence at the hearing from [Ms E] and [Ms F].

1. The hearing was held during the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by audio visual link having regard to the period that has elapsed since the applicant applied for and was refused the nomination and the need for the applicants to have certainty relation to their respective rights. The Tribunal also had regard to its objective in providing a mechanism of review that is just, economical and quick and the delay to the matter to be here is not to be conducted by audio visual link.

1. For the following reasons, the Tribunal has decided to affirm the Department’s Decision and to refer the case to the Department of Home Affairs or the Minister for consideration of intervening pursuant to the public interest powers conferred by section 351 of the Migration Act 1958 (Cth) (Act).

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue on the application for review by the applicant, [Company 1], is whether it meets the requirements for approval of the nomination under the Direct Entry Nomination stream set out in regulation 5.19(4) which is set out in the Department’s Decision. For the nomination to be approved, all the requirements must be met.

1. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable must include the required written certification relating to conduct that contravenes section 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in a position under their direct control.

1. The Department has provided to the Tribunal its file relating to the nomination by the applicant. The file contains, amongst other things, the application nominating [Mr C] for the position of retail manager (General) ANZSCO 142111. The application and the material contained in the file establish that the requirements of regulation 5.19(4)(a) are met.

1. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. The evidence establishes that the applicant operated the business known as [Business name 1], which is a [business type]. It operated that business at the time the nomination was made. As indicated, on 11 October 2021, the applicant completed a sale of the business to [Company 2]. Since then, [Company 2] has operated the business. [Mr and Mrs B] gave evidence that the business continues to operate and no change has been made to the structure or operation of the business. The only material change is that [Company 1] no longer operates the business and it is now being operated by [Company 2].

1. The evidence establishes that [Company 1], up until the time it sold the business, actively and lawfully operated the business in Australia and directly operated the business in which the nominated employee worked and continues to work. The evidence establishes that [Company 2] is actively and lawfully operating the business in Australia and directly operates the business in which [Mr C] continues to work. However, the difficulty is that the applicant, [Company 1], is no longer directly operating the business. Accordingly, the requirement in regulation 5.19(4)(b) is not met.

1. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. Neither the applicant nor [Company 2] operate a labour hire to an unrelated business. Accordingly, the requirements of regulation 5.19(4)(c) does not apply.

1. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full-time and the terms and conditions of that employment do not expressly exclude the possibility of an extension. [Mr C] and [Mr A] gave evidence that [Mr C] first began working for [Company 1] in the business in 2016. Since then, he was worked in the business. The applicants provided to the Tribunal a copy of an employment contract made 3 August 2018 between [Company 1] and [Mr C] and a copy of the contract of employment between [Company 2] and [Mr C] dated 29 September 2021. Since in or about September 2021, [Mr C] has worked in the business under the direct control of [Company 2].

1. As indicated, [Mr C] has been working in the business previously operated by [Company 1] which is now owned and operated by [Company 2]. The respective contracts

of employment do not expressly exclude the possibility of an extension. Accordingly, the requirements in regulation 5.19(4)(d) are met.

1. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident forming equivalent work in the same workplace at the same location.

1. [Mr A] gave evidence that he advertised for the nominated position in social media, in the software where the business is operated from in [Town 1], and in the local newspaper. The applicant provided documentary evidence supporting this evidence. [Mr A] said, and I accept, that no suitably qualified or experienced applicant applied for the position. At the time that the advertisements were placed, [Mr C] had been working in the nominated position. [Mr A] says, and I accept, that if a suitably qualified person, being an Australian citizen or permanent resident, had applied for the advertised position, that person would have been employed on terms the same as and no less favourable than the conditions of employment for the nominated position and would have worked in the same workplace at the same location. The evidence establishes that there is no Australian citizen or permanent resident available to work or who has applied to work in the nominated position. I am satisfied the requirements of regulation 5.19(4)(d) are met.

1. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information. For these purposes, “adverse information” and “associated with” have the meaning given in regulation 1.13A and 1.13B.

1. I have reviewed the Department’s files relating to the application or the nomination by [Company 1], and the application for a visa by [Mr C]. There is no information or material contained in the files indicating adverse information known to Immigration about the nominator or a person associated with the nominator.

1. The evidence establishes that [Company 1] conducted the business known as [Business name 2] at [Town 1] until it sold that business to [Company 2]. The sale was completed on 11 October 2021. The applicants provided to the Tribunal: - contracts of employment for [Mr C]; financial statements of [Company 1] and [Company 2]; company business name searches; an employment schedule recording the employees who work in the business; photographs relating to the shop where the business is operated; references from suppliers and customers attesting to a professional relationship with [Mr C].

1. The evidence establishes that [Company 1] and [Company 2] are established, financially viable companies. During the hearing [Mr C] and [Ms D] gave evidence about not being charged or convicted with any offences, and there are no pending charges against them.

1. The evidence establishes that there is no adverse information known to Immigration about the nominator or person associated with the nominator. Accordingly, the requirements of regulation 5.19(4)(f) are met.

1. Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each state or territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

1. Up until the time it sold its business, [Company 1] operated the business. Since 11 October 2021 [Company 2] has operated the business. At the time of the hearing the business had 43

working employees, including [Mr C] and [Ms D]. [Mr B] said that there are 2 other overseas employees and 39 Australian citizens or residents who are employed within the business. Prior to its sale, this was the employee composition of the business that was operated by [Company 1].

1. Both [Company 1] and [Company 2] provided financial statements recording the companies are solvent and able to meet their debts as of when they fall due. Those companies were or are the employers. I am satisfied that when [Company 1] employed [Mr C] within the business it met its employer obligations. I am satisfied that [Company 2], the current employer, meets its employer obligations.

1. There is no evidence of non-compliance of the laws of the Commonwealth or the state in which the business operates. However, the difficulty is that the applicant, [Company 1], is no longer operating the business or employing employees in the business. Accordingly, the requirements in regulation 5.19(4)(g) are not met.

1. Regulation 5.19(4)(h) contains a number of alternative requirements. These require, so far as relevant, that:

·   the position and business are in regional Australia;

· there is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a paid employee in the position under a nominator’s direct control,

·   the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area;

·   the tasks to be performed in the position correspond to the tasks of an occupation specified in the relevant legislative instrument;

· a Regional Certifying body located in the same State or Territory as the position has advise the Minister about the matters in reg 5.19(4)( e) and reg 5.19 (4)(h)(ii)(B) & (C).

1. The evidence establishes that the position and business are in [Town 1] in regional Australia.

1. The applicants provided to the Tribunal, amongst other things, a diagram or table recording the chain of command or hierarchy within the business. [Mr A] and [Mr and Ms B] gave evidence that after advertising, no suitably or qualified Australian citizen or permanent resident applied for the nominated position and there is a need to employ [Mr C] in the nominated position to work as retail manager. The applicants provided a statement setting out [Mr C]’s responsibilities. [Mr A] and [Mr and Ms B] and [Mr C] gave evidence at the hearing in relation to the work and the responsibilities of [Mr C] in the nominated position of retail manager. His presence and employment within the business is integral to its ongoing viability.

1. [Mr and Mrs B] said that if [Mr C] did not continue to work in the position of retail manager, his role would not be able to be filled locally and the business would need to retract which would have the consequence of losing other employees as well as further adverse impacts on the local community.

1. The evidence establishes that:

·    there was a genuine need to employ the person identified under regulation 5.19(4)(a)(ii) as a paid employee to work in the nominated position. However, the nominator is [Company 1]. [Company 1] has sold its business and no longer employs [Mr C]. Accordingly, I am not satisfied that there is a genuine need for the nominator to employ the person identified under reg 5.19(4)(a)(ii) as a paid employee in the position under a nominator’s direct control.

·   the position cannot be filled by an Australian Citizen or permanent resident who is living in the same local area.

·   the tasks being performed or duties performed by [Mr C] correspond with an occupation specified by the Minister in the relevant legislative instrument which falls in line with ANZSCO142111.

1. The Department’s Decision record that the nominator has provided a copy of a Regional Certifying Body (RCB) advice that, amongst other things, indicates there is a need for a paid employee in a nominated position. A copy of the RCB advice is in the Department’s file. Accordingly, I am satisfied that a Regional Certifying body located in the same State or Territory as the position has advise the Minister about the matters in reg 5.19(4)( e) and reg

   5.19 (4)(h)(ii)(B) & (C).

1. Having regard to the above findings, the requirements of regulation 5.19(4)(h) are not met.

1. As indicated, the difficulty in this case is that the applicant is [Company 1]. [Company 1] no longer operates the business in Australia in which [Mr C] works. The business is now owned by [Company 2] who is [Mr C]’s current employer. If the applicant had not sold its business and continued to operate the business and employ [Mr C], for the reasons outlined above, I would have been satisfied that the applicant meets the requirements of regulation 5.19 for approval of the nomination of the position in Australia.

REQUEST TO REFER THIS MATTER AND THE RELATED APPLICATION FOR REVIEW BY [Mr C], [MS D] & THEIR SON [MASTER G] TO THE MINISTER UNDER SECTION 351 OF THE ACT

1. [Company 1], [Company 2], [Mr C], [Ms D] and Ms Harris requested the Tribunal to refer this matter and the related application for review by [Mr C], [Ms D] and their son, [Master G], to the Minister under section 351 of the Act.

1. Under section 351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of the possible exercise of his or her powers under section 351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under section 351 of the Act may only be exercised by the Minister personally. Further, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power after the Tribunal has made its decision, regardless of whether the Minister was requested to do so by the applicant, or any other person, or in any circumstance.

1. The Minister has issued guidelines (Minister’s Guidelines) to identify cases involving unique or exceptional circumstances where it may be in the public interest to substitute a more favourable decision for the decision of the review by the Tribunal.

1. The Minister’s power to substitute a more favourable decision with that of a review tribunal is only available where, so far as is relevant:

(a)a review tribunal has made a decision under the appropriate section of the Act;

(b)the date of the tribunal decision falls within the operation of the current provisions of the Act;

(c)the decision of a relevant review tribunal (to affirm, set aside or remit the decision) continues to exist and a subsequent decision has not been made in the case (however, the Minister’s Guidelines indicate that such a case would generally be inappropriate to consider).

1. As stated, this is an application for review of the Department’s Decision refusing the nomination by [Company 1] of [Mr C] to the position of retail manager in the business that it previously operated and is now being operated by [Company 2]. For the reasons stated above, I found that the applicant does not meet the requirements of regulation 5.19(4) and the decision under review must be affirmed. The decision falls within the current operation of the provisions of the Act. It continues to exist and a subsequent decision has not been made in the case.

1. The Tribunal may refer a case to the Department for consideration under the public interest powers. If a case is referred by the Tribunal, the Department is to initiate a request to assess the case in accordance with the Minister’s Guidelines.

1. The principles that apply to the intervention powers covered by the Minister’s Guidelines include - if a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for the Minister to intervene.

1. [Mr C] has applied for a subclass 187 (Regional Sponsored Migration scheme) visa. That is a permanent resident visa. Ms Harris submits, and I accept, that the only other types of visa pathways are a subclass 211 (State Nominated) visa. This is a temporary visa with a 5-year term. This type of visa would require [Mr C] to be nominated by the State. The other visa is a subclass 494 Regional Sponsored visa. This requires sponsorship. This type of visa is a temporary 5-year visa. As indicated, it requires a sponsor, a regional certifying body certification and for the applicant to work in the sponsored position for the minimum period of 3 years.

1. Having regard to the nature of these types of visas, the fact that [Mr C] has worked in his current position since 2016, [Company 1] has applied for approval of the nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream and [Mr C] has applied for a Regional Employer Nomination (Permanent) (Class RN) visa , I do not consider [Mr C] has a visa pathway available to him which accords with his circumstances.

1. The Minister’s Guidelines describe the ministerial intervention principles and the types of cases that could demonstrate unique or exceptional circumstances to be referred to the Minister.

1. The Minister’s Guidelines indicate that the Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more unique or exceptional circumstances. The Minister’s Guidelines list circumstances which may be unique or exceptional. These, so far as is relevant, include the following:

·Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family unit is an Australian citizen or Australian permanent resident;

·Compassionate circumstances regarding the age, and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person;

·Exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia;

·Circumstances not anticipated by relevant legislation; or relevant unintended consequences of legislation; or application of relevant legislation leads to unfair or unreasonable results in a particular case.

1. For the following reasons I am satisfied that the above four circumstances are satisfied.

1. On 9 January 2018 [Company 1] lodged the application with the Department nominating [Mr C] for the position of retail manager in its business. The business operates in [Town 1], regional Australia. On 29 January 2018 [Mr C], [Ms C] and their son applied for the Subclass 187 (Regional Sponsored Migration Scheme) visa. On 24 July 2019, the Department delivered its decision refusing the nomination. On 10 September 2019 [Company 1] applied to the Tribunal for review of the Department’s Decision. On 19 September 2019, the Department refused the applications for the visas. On 14 October 2019, an application was lodged with the Tribunal to review that decision. On 11 October 2021 [Company 1] sold its business in which [Mr C] has worked since in or about 2016 to [Company 2]. The evidence establishes that the business has not changed. The only material change is [Company 2] now operates the business.

1. Today being 2 February 2023 is the first available date that the Tribunal has been able to hear the applications by [Company 1], [Mr C], [Ms D] and their son. In the event the Tribunal was able to hear the applications earlier, and prior to the completion of the sale of the business, I would have been satisfied that the application by [Company 1] would have been successful. Consequently, the application by [Mr C], [Ms D] and their son would have been successful and remitted to the Department of Home Affairs for reconsideration with the direction that [Mr C] meets criteria for the Subclass 187 (Regional Sponsored Migration Scheme) visa as there would have been an approved nomination.

1. [Ms D] first arrived in Australia [in] February 2014. [Mr C] says he arrived in Australia in March 2014. They have both remained in Australia since first arriving, save for returning to their home country for short periods of time to visit family. They gave evidence that they met at an English school in 2014. [Mr C] says that from 2014 to in or about 2016 he lived in [Town 2]. This is a 20-minute commute from [Town 1]. From in or about 2016 he has worked in the business previously operated by [Company 1], which is now operated by [Company 2]. [Mr C] and [Ms D] married in 2017. They have lived in [Town 1] since they were married. They both work in [Town]. [Ms D] also works in the same business previously operated by [Company 1], which is now operated by [Company 2]. [Town 1] has a small population. The evidence given at the hearing establishes that they have become valued members of the business and of the community. The applicants provided references attesting to this. [Ms E] and [Ms F] gave evidence attesting to this. [Ms F] previously worked in the business. She now works next door and is a regular customer of the business. [Ms E] has

been responsible for supplying uniforms to the business, has children who work in the business and she is also a regular customer.

1. [Mr C] and [Ms D] have one child who was born in Australia on [Date]. He is almost [Age] years of age. Since 2021, he has attended the local childcare three days a week. [Mr C], [Ms D] and their son have established a strong committed connection to the local community. It is their evidence, which I accept, that they wish to remain in Australia to raise their child in [Town 1]. Their aim is to continue to work in and one day operate a local business. [Mr and Mrs B] said that their plan is to allow [Mr C] and [Ms D] to take over the business. They are well-placed to do so, having regard to their long history and familiarity with the business and local community. [Mr C] says that his [home country] is unsafe and will provide a difficult environment to raise their child. He feels it is comfortable and safe in [Town 1].

1. So far as the local community is concerned, as stated, the evidence establishes that there are currently 43 employees working in the business including [Mr C] and [Ms D]. Of these employees, 39 are Australian citizens. [Mr and Mrs B] and [Mr A] gave evidence that there is a strong need to continue to employ [Mr C] in the business. They say, and I accept, that there is a real difficulty in filling his position locally or within Australia. [Mr and Mrs B] say, and I accept, that if [Mr C] departed the business, the business would need to retract and they would lose employees, which include many of the Australian citizens who are employed and work in the business. This is due to the work and responsibilities of [Mr C] within the business and there is no one available in Australia to fill his position.

1. [Ms E] says that she runs a business that is supported by the applicants and [Company 2]. She says she has had three children that have worked in the business for the past 5 years. She has come to know [Mr C] and [Ms D]. She speaks highly of them.

1. The business, in which [Mr C] works, supports the local community. Its hours of trade are 5 am to 10 pm, 7 days a week. The business provides a community hub and is referred to as “[Business name 3]”. It is the main street of [Town 1]. It is the common meeting place for residents of [Town 1]. [Mr B] says it is one of the biggest (second) employers in town. It employs locals. The community commonly meets at the [business type]. The business sponsors local clubs.

1. If [Mr C] departed, neither he nor [Mrs B] would be able to manage or operate the business with the consequence that the business would retract, would be unable to continue, at the level that it has, to support the local community, clubs and many employees would lose their jobs.

1. Having regard to this evidence, I am satisfied that there are strong, compassionate circumstances that if not recognised would result in serious ongoing and irreversible harm and continuing hardship to Australian citizens within the [Town 1] community, through the loss of jobs, and a loss of sponsorship and restriction or possible loss of an important meeting place provided through the business. The evidence establishes that the business can continue to operate at its current level, due to [Mr C]’s work, experience and competency.

1. Having regard to the above evidence, I am satisfied that there are compassionate circumstances regarding the health and psychological state of [Mr C],

   [Ms D] and their young son if they are required to return to their home country. They

would be displaced from the community where they work, have lived for approximately nine years and where their child has lived for his entire life.

1. Having regard to the evidence, I am also satisfied that there would be exceptional economic, cultural or other benefits that would result from the person being permitted to remain in Australia. These benefits include the continuation of the business in its current form, which provides or generates a sufficient income to employ Australian citizens and members of the local community, provides a meeting place for the local community and provides sponsorship and support to local clubs and businesses within the local community.

1. As regards circumstances not anticipated by relevant legislation, or clearly unintended consequence of legislation, or the application of the relevant legislation leads to unfair or unreasonable results in a particular case, I have already referred to the chronological history of the applications made by [Company 1], [Mr C], [Ms D] and their son. The position is that it is only because [Company 1] has recently sold its business to [Company 2] that the application for review by [Company 1] is unsuccessful. As indicated, if it had continued to operate the business, its application would have been successful and consequently the Tribunal would have remitted the applications for the Regional Employer Nominated (Permanent) (Class RM) visas made by [Mr C] and [Ms D] and their son for reconsideration.

1. Ms Harris submits that only the legal entity of the nominator has changed since the application was made. She submits that the business and nominated position have not changed and the requirements for approval of the nomination would have been satisfied but for delays in processing and determining the application for review and the intervening sale and change of the proprietor of the business.

1. Ms Harris submits in effect that the current circumstances outlined above were not anticipated by legislation and the refusal of the application for review due to the recent sale of the business, in the circumstances outlined above, is the unintended consequences of legislation. It is submitted that the application of the legislation leads to unfair or unreasonable results in this case and in the case of the related applications by [Mr C], [Ms D] and their son. There is force in this submission.

1. It is submitted that “the intent of regulation 5.19(4) and 187.223 and subsequent changes made in March 2018 were to prevent changes to the nominating employer and the nominated position resulting the distinct new employer and new position. This has not occurred in this case.”

1. The evidence establishes that the only relevant change is a change in the proprietor of the business. The business and nominated position have remained unchanged. [Company 1], who operated the relevant business, sold the business to [Company 2]. [Company 2] continues to operate the business in the same form. [Mr C] continues to work, as he did prior to completion of the sale, in the business in the same position. The only change is proprietary ownership. I do not consider that the legislation adequately deals with or contemplates this change in circumstance.

1. For these reasons, I think the circumstances of this case and the change of proprietorship leading to the refusal of the application for review by [Company 1] is an unintended consequence of the legislation. Moreover, having regard to the time it has taken the Tribunal to hear and determine this application and the fact that the only change in circumstances is proprietorship of the business from [Company 1] to [Company 2], I am satisfied that the application of the legislation leads to an unfair or unreasonable result in this case.

1. Balancing the integrity of the migration program with the interests of the applicants and their connection with the local community, the Tribunal considers that this case involves unique or exceptional circumstances.

1. The Tribunal therefore requests this case be brought to the attention of the Minister in order for the Minister to consider and exercise her discretionary intervention powers under section 351 of the Act.

1. It is anticipated that the applicants may wish to lodge documentation in support of any referral for ministerial intervention.

DECISION

1. The Tribunal affirms the decision under review to refuse the nomination and refers the case to the Department of Home Affairs for consideration of intervening pursuant to the public interest powers conferred by section 351 of the Act.

Peter Newton SC Member