Buzon (Migration)

Buzon (Migration) [2024] AATA 1198 (10 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Cromwell Buzon
REPRESENTATIVE:  Mr Malek Fadi (MARN: 0848702)
CASE NUMBER:  2001902
HOME AFFAIRS REFERENCE(S):         BCC2019/4934770
MEMBER:Alison Mercer
DATE:10 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 10 May 2024 at 3:34pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Temporary Residence Transition stream – position of Dairy Cattle Farmer – no approved nomination – direct control by associated entities of the nominating partnership – referral for Ministerial Intervention – age restrictions – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, Schedule 2, cls187.233; rr 1.13, 2.12, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 2 October 2019. At the time of application, Class RN contained one subclass: subclass 187 (Regional Sponsored Migration Scheme).
The criteria for a subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.
In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Dairy Cattle Farmer (ANZSCO code 121313).
The delegate refused to grant the visa because the applicant did not meet cl 187.223 of Schedule 2 to the Regulations, which required (amongst other things) that the applicant was the subject of an approved nomination by his Australian employer. The delegate found that the Department had earlier on 9 December 2019 refused to approve a nomination of the applicant by his Australian employer, M R Gault & K Gault.
The Tribunal received an application for review by the applicant on 3 February 2020. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Fadi Malek, as his representative and authorised recipient for correspondence.
On 22 February 2024, the Tribunal wrote to the applicant via his agent to invite him, pursuant to s.359A of the Act, to comment on or respond to information held by the Tribunal that was potentially adverse to his case. The Tribunal advised that the particulars of that information were:
·at the time the applicant made his visa application on 2 October 2019, he was nominated by his employer, M R Gault & K Gault, as a Dairy Cattle Farmer;
·the Department rejected his visa application on 20 January 2020 because the delegate found that he did not meet cl.186.223 of Schedule 2 to the Migration Regulations as he was not the subject of an approved nomination at the time of the delegate’s decision. The delegate’s findings were made on the basis that the applicant’s employer’s nomination of him for the occupation of Dairy Cattle Farmer had been rejected by the Department on 9 December 2019;
·he applied to the Tribunal on 3 February 2020 for review of the Department’s decision to reject his subclass 186 visa application;
·the Tribunal’s records indicated that M R Gault & K Gault lodged an application for review of the decision to refuse its nomination with the Tribunal but that the Tribunal affirmed the decision to refuse the nomination on 21 February 2024; and
·accordingly, there was currently no approved nomination of the applicant by M R Gault & K Gault, and the decision to refuse the nomination was not under review by the Tribunal.
The Tribunal advised the applicant that this information was relevant to the review because, subject to his comments or response, it indicated that:
·he was not the subject of an approved appointment made by the same employer
who nominated him as required by cl.186.223 and this would be the reason (or part
of the reason) for the Tribunal to affirm the decision under review, as it was a
requirement that he met cl.186.223 at the time of decision; and
·there was no evidence that he met the criteria in the Direct Entry or Labour
Agreement streams of the subclass 186 visa.
The Tribunal further noted that since 18 March 2018, major legislative amendments were made to the subclass 186 and 187 visa categories and their associated nominations, such that a nomination by a new employer now would not satisfy cl.186.223 in respect of a subclass 186 visa application for which you were originally nominated by another employer.
The applicant was requested to provide comments or a response by 7 March 2024.
On 7 March 2024, the Tribunal received the following response from the applicant’s agent:
…
Background:
Mr. Buzon arrived in Australia on a 457 visa granted on 24 February 2016.
A nomination application lodged by MR GAULT & K GAULT was approved on 21 February 2017, and Mr. Buzon commenced employment on 17 March 2017.
On 1 October 2019, a 187 RSMS nomination application under the TRT stream was lodged for Mr. Buzon as a Dairy Cattle Farmer by MR GAULT & K GAULT.
The Department requested further information on 22 October 2019, including evidence of full-time employment over two years within a three-year period.
An accountant's letter submitted on 21 November and again on 3 December 2019 clarified the relationship between MR GAULT & K GAULT (ABN 62 436 672 993) and M & K Gault Pty Ltd (ABN 27 600 020 255), highlighting that both entities have common financial controllers and owners, and salary payments for the group are managed by M&K Gault Pty Ltd.
The Department refused Mr. Buzon's nomination on 9 December 2019, citing concerns about the nominating position's control. An email sent to the Department on the same day argued for reassessment based on Jurisdictional Error, referencing policy provisions that allow for a broader interpretation of 'direct control' in cases of associated entities. This request was declined on 13 December 2019, leading to an AAT review application on 30 December 2019.
Points of Contention:
Improper Assessment and Relationship Between Entities:
The initial refusal failed to properly assess the relationship between MR GAULT & K GAULT and M & K Gault Pty Ltd as related entities. This oversight significantly impacted Mr. Buzon's application, contravening the policy's provision for broader interpretation in cases of associated entities.
Impact of Extended Review Process:
The lengthy review process (over four years) coincided with a significant restructuring of the employer's business, adversely affecting Mr. Buzon's nomination and visa prospects through no fault of his own.
Request for Ministerial Intervention:
Considering the exceptional circumstances and the adverse impacts of administrative delays and business restructuring, we respectfully request a personal hearing for Mr. Buzon and urge the Tribunal to consider referring the matter for Ministerial Intervention.
…
The applicant appeared before the Tribunal by videoconference on 5 April 2024 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent, who attended by videoconference also.
The Tribunal exercised its discretion to hold the hearing by videoconference determining that it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, who is located in regional Victoria. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
Nomination of a position
Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.
In addition, this criterion also requires that:
·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 reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information
·the position is located in regional Australia (as defined in reg 5.19)
·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.
It is not disputed that at the time that the Department made its decision to refuse to grant the applicant a subclass 187 visa on 20 January 2020, the applicant was not the subject of an approved nomination by his Australian employer, M R & K Gault (a partnership), as the partnership’s nomination of the applicant had been rejected by the Department on 9 December 2019.
Nor is it disputed that although M R & K Gault sought review of the decision to refuse their nomination of the applicant, the Tribunal affirmed the Department’s decision to refuse to approve the nomination on 21 February 2024 (see AAT/MRD decision 1936544).
As noted above, on 18 March 2018, major legislative amendments were made to the subclass 186 and 187 visa categories and their associated nominations, such that a nomination by a new employer now would not satisfy cl.187.223 in respect of a subclass 187 visa application for which an applicant was originally nominated by another employer.
Accordingly, the Tribunal must find that the applicant is not the subject of an approved nomination by his original nominating Australian employer, and thus cannot meet cl.187.223(2). This in turn means that he cannot satisfy cl.187.223 as a whole and does not meet the criteria for the grant of a subclass 187 visa in the Temporary Residence Transition stream.
The applicant has only sought to satisfy the criteria for a subclass 187 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed in relation to him.
Ministerial intervention
In the event of an unsuccessful review application, the applicant has asked the Tribunal to refer this matter to the Minister for consideration of the Minister’s power to intervene and grant him a visa pursuant to s.351 of the Act.
Under s.351 of the Act, the Minister can substitute for a decision of a review tribunal a decision that is more favourable to a person, if he or she thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to determine, and the Minister’s power to intervene is personal and non-compellable. This means that the Minister does not have a duty to use, or consider using, any of the powers.
There are Departmental guidelines (set out in the Department’s most recent Procedures Advice Manual, or PAM3) setting out what kinds of cases might result in Ministerial intervention, and also circumstances in which the Minister considers it would be inappropriate to intervene. The Tribunal has included the guidelines as an attachment to this decision.
There is no evidence before the Tribunal to indicate that the applicant’s case falls within the scenarios set out in the list of cases where the Minister has indicated that they would not intervene.
The Tribunal notes that the applicant and his agent’s submissions seeking Ministerial intervention can be summarised as follows:
·the application of the relevant legislation leads to particularly unfair or unreasonable results in this case, in that the applicant has at all times since early 2017 been working in the same capacity as a Dairy Cattle Farmer in a business operated by Mr Matthew Gault in the Maffra/Sale area of regional Victoria;
·the original Department refusal decision was unfair as it failed to recognise that the applicant was in fact employed by an associated entity of the nominating partnership. The applicant was further disadvantaged by the lengthy processing times at the Department and particularly the Tribunal. During this lengthy period, commercial interests led to his employer Mr Gault restructuring his business, which meant that, legally, the applicant was no longer employed (and could no longer be employed) by his original nominating employer. The restructuring was not within the applicant’s control or knowledge and he has continued to work in the same role for which he had originally been sponsored and nominated;
·moreover, other nominated employees whose cases took less time to process were granted subclass 187 permanent residence visas in essentially identical circumstances to those of the applicants;
·the applicant is a valued and experienced member of staff with his Australian employer, a position he has now held for 7 years, and had been instrumental in the dairy farm operations of his employer(s);
·the applicant had been in Australia since 2017 as the holder of a subclass 457 visa, followed by bridging visas with work rights following the subclass 187 visa application; and
·the applicant had made his life here and was well integrated into the Australian community, and in particular the Maffra/Sale community.
The Tribunal notes that the purpose of the subclass 187 (Regional Sponsored Migration Scheme) visa is for Australian employers to fill vacancies for which there are no, or few, suitable local candidates. In this case, the applicant is still essentially working for his nominating employer in what the Tribunal accepts to be a vital role for a dairy farm business in regional Victoria, being a Dairy Cattle Farmer. It is only a legal technicality arising from the employer’s business restructure that means that the nomination by M R & K Gault cannot now be approved (as set out in detail in the Tribunal’s decision in AAT/MRD 1936544 of 21 February 2024); it is not because the dairy farm is not still operating or that the applicant is no longer working as a Dairy Cattle Farmer. It is the fact that the applicant is now employed by MCMKP Pty Ltd as trustee for the G & S Agriculture Unit Trust that prevents the nomination being approved, as the Tribunal found in its earlier decision that MCMKP Pty Ltd is not an associated entity of the original nominating employer, M R & K Gault, as the partnership did not have direct control over the Trust, even though Mr Gault is a unit holder in the Trust. The Tribunal also considers that the Department did incorrectly find in its primary decision that the applicant’s previous employer was not an associated entity of M R & K Gault Pty Ltd. Had the nomination been approved at that time, it appears clear that the applicant would have been granted permanent residence several years ago.
However, although the nominating employer and the business group of which it is a part has undergone a number of structural changes since 2017, the nominee’s role as a Dairy Cattle Farmer is essentially unchanged and ongoing; and the position description and oral evidence of Mr Matthew Gault at the nominating employer’s hearing indicate that the applicant is carrying out the full range of duties set out in ANZSCO for a Dairy Cattle Farmer
The Tribunal notes that it is not clear that the applicant would be able to reapply for a subclass 187 visa if nominated by a new entity now, as although the occupation of Dairy Cattle Farmer remains on the approved list for an RSMS application in the Temporary Residence Transition stream, the applicant is now 43 (about to turn 44) and this visa category requires applicants to be no older than 45 at the time of application, unless covered by an exemption. The relevant instrument (LIN 19/216) provides an exemption for persons who held a subclass 457 visa as at 18 April 2017 and who have not turned 50 at the time that they apply for (another) subclass 187 visa, which appears to apply to the applicant. Even if this option were hypothetically available, the Tribunal considers it would involve significant additional costs to the applicant and that it would be disruptive to the applicant and to the applicant’s employer if the applicant had to depart Australia for an unknown period and apply for a new subclass 187 visa offshore.
The Tribunal further notes that the applicant is still of an age where he could be expected to work full time for another 15 to 20 years or more. The Tribunal also notes that while the Skills Priority List for 2023 produced by the Australian government’s National Skills Commission does not currently list Dairy Cattle Farmers as being in short supply in Victoria, the evidence given by the applicant’s former employer, Mr Matthew Gault, at the associated nomination hearing, indicated that he and other dairy farmers in regional Victoria had struggled to find suitably skilled Dairy Cattle Farmers locally. This is corroborated by an article on the Dairy Australia website from 26 September 2022, entitled ‘Dairy tackles workforce shortage,’ and which refers to the fact that 1 in 4 dairy farmers are unable to find labour or access the skills they need: Dairy tackles farm workforce shortage | Dairy Australia. Similar issues are addressed in an article published on 30 October 2022 on the website of Australian Dairy Famers entitled ‘Dairy gets seat on jobs workforce:’ Labour – Australian Dairy Farmers, which identifies the need for immediate support and long term planning to address the systemic shortage of dairy farm workers.
Given this, the Tribunal accepts that it would be difficult for the applicant’s current employer to find a Dairy Cattle Farmer locally with the skill, experience and commitment of the applicant, and that losing him would adversely affect this Australian business.
When taken together, and cumulatively, the Tribunal is satisfied that these factors constitute unique and exceptional circumstances which warrant consideration by the Minister pursuant to s.351 of the Act, and it refers the case to the Minister for this purpose.
DECISION
The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.
Alison Mercer
Member

ATTACHMENT A
187.223(1)     The position to which the application relates is the position:
(a)nominated in an application for approval that:
(i)identifies the applicant in relation to the position; and
(ii)is made in relation to a visa in a Temporary Residence Transition stream; and
(c)in relation to which the declaration mentioned in paragraph 1114C (3) (d) of Schedule 1 was made in the application for the grant of the visa.
(2)     The Minister has approved the nomination.
(3)     The nomination has not subsequently been withdrawn.
(3A)    Either:
(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(4)     The position to which the application relates is located in regional Australia.
(5)     The position is still available to the applicant.
(6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.
ATTACHMENT B: Extracts from Procedures Advice Manual (PAM3) on Ministerial intervention
…
3. Ministerial intervention principles
The following principles apply to the intervention powers covered by these guidelines:
·     it is my general expectation that a person who has not been granted a visa through the statutory visa process will leave Australia
·     consideration of a case for intervention is at my discretion and is not an extension of the visa process
·     if a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for me to intervene
·     I will view a case referred to me unfavourably if the person has not complied with the conditions of a previous visa, has provided false or misleading information to the Department or any other relevant authority (such as an assessing authority) or has been an unlawful non-citizen
·     I expect a person requesting my intervention to:
obe a lawful non-citizen if they are in the community when they make their intervention request and remain a lawful non-citizen until that request is finalised
ocooperate in ensuring that their travel documents are available and valid, and
ocontinue to engage with the Department and assist with any enquiries, particularly those concerning their identity
·     I expect a person requesting my intervention to continue to make arrangements to leave Australia while their request is being progressed. If the request is unsuccessful, I expect any person who is the subject of the request to leave Australia.
CASES THAT SHOULD BE BROUGHT TO MY ATTENTION
4. Unique or exceptional circumstances
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
·     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 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 clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case
·     the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control
·     a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country
·     the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.
5. Other relevant information
5. Other relevant information
For all cases referred to me under these guidelines, the Department will provide information on any other relevant issues, including the following:
·     circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations
·     circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme
·     whether the continued presence of the person in Australia would pose a threat to an individual in Australia or to Australian society or security or may prejudice Australia’s international relations
·     whether there are character concerns in relation to the person, particularly concerns related to criminal conduct
·     information about a person’s history of compliance with Australian laws, including migration laws, such as:
oany offence or fraud against the migration or citizenship legislation
oany failure to comply with their visa conditions
oany periods as an unlawful non-citizen in the community
otheir history of cooperation and engagement with the department to resolve their immigration status, particularly in relation to identity and travel documents
·     details of any ongoing court proceedings challenging a decision related to the case and any outcome available before I consider the case
·     the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.
CASES THAT SHOULD NOT BE BROUGHT TO MY ATTENTION
6. When the powers are not available
My intervention powers are not available if:
·     there is no review decision on the case by a relevant review tribunal or
·     I have exhausted my power in relation to a review tribunal decision because I have already intervened to grant a visa.
7. Inappropriate to consider
Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider. The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing:
·     the request is made by a person who is not the subject of the request or their authorised representative
·     the person is in the community and:
ois an unlawful non-citizen and remains an unlawful non-citizen throughout the course of their Ministerial intervention request; and/or
odoes not cooperate in ensuring that a valid travel document is available (or has not satisfied the Department that they are stateless)
·     the person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa
·     the person’s visa has been cancelled because they breached their visa conditions
·     the person has had a visa refused because they did not comply with the conditions of a previous visa
·     the person has been refused a visa or has had a visa cancelled on character grounds
·     ASIO has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment (ASA) which remains in effect
·     the person could apply for a Partner visa onshore but is subject to an 8503 condition (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided
· the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations)
·     the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore
·     the person has left Australia
·     the person has an ongoing application for a substantive visa (either onshore or offshore) with my Department
·     the person has an ongoing application for merits review of a visa decision with a relevant review tribunal
·     the person has had a remittal or a set aside decision from a relevant review tribunal or a court
·     the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E
·     the person has an ongoing Ministerial intervention request under any of the powers covered by these guidelines
·     a Notice of intention to remove has been issued to the person, and the Ministerial intervention request has not been initiated by the Department
·     the person holds a Bridging visa E with visa condition 8512, which specifies that the person must leave Australia by a specified date
·     the request raises claims only in relation to Australia’s non refoulement obligations.
…

[2024] AATA 1198

10 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice