Caldwell (Migration)

[2020] AATA 5551

Caldwell (Migration) [2020] AATA 5551 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Calum Caldwell
Ms Kari Anne Fraser
Mr Luca Carter Caldwell

CASE NUMBER:  1901135

DIBP REFERENCE(S):  BCC2018/933503

MEMBER:Karen Synon

DATE:18 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 18 November 2020 at 6:03pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – position of Customer Service Manager – no approved nomination – two sponsoring employers went into liquidation – inability to apply for a Temporary Skill Shortage visa – request for Ministerial Intervention – COVID-19 pandemic travel restrictions – unique circumstances not anticipated by legislation – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 65, 351, 359, 360
Migration Regulations 1994, Schedule 2, cls 457.223, 457.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 27 February 2018.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visas on 15 December 2018 on the basis that cl.457.223(4)(a) was not met because the first named applicant (‘the applicant’) was not the subject of an approved nomination.

5. The applicants applied for review of the primary decision on 17 January 2019 and provided a copy of the Department’s decision.

6. The applicants were represented in relation to the review by their registered migration agent.

7. Relevantly, on 8 October 2020, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to provide comments or respond, in writing, to information it considered would be the reason or part of the reason for affirming the decision under review.  The Tribunal raised the following particulars:

   ·The information is contained on Tribunal file number 1831181.  That Tribunal file was created because Global Home Solutions Australia Pty Ltd applied to the Tribunal for review of a Department decision not to approve a nomination, in respect of Calum Caldwell, for the occupation of Customer Service Manager’.  On 17 February 2020 Global Home Solutions Australia Pty Ltd withdrew that application for review.

   ·Departmental records indicate that Calum Caldwell is not presently the subject of an approved or pending nomination by a standard business sponsor.

   ·Departmental records also indicate that Kari Anne Fraser is not presently the subject of an approved or pending nomination by a standard business sponsor.

8. The applicants were advised that this information is relevant to the review because cl.457.223(4)(a) requires that, at the time of decision, the applicant must be the subject of an approved nomination by a standard business sponsor.

9. On 21 October 2020 the following response was received:

   The applicants:

   oAcknowledge the withdrawal of the nomination application of Global Home Solutions Australia Pty Ltd.

   oAcknowledged that Calum Caldwell and Kari Fraser are not presently the subject of an approved nomination by a standard business sponsor.

   oConcede that the application to the Tribunal cannot succeed.

   The applicants intend to ask the Tribunal to refer their matter to the Minister, for intervention under section 351 of the Migration Act and to provide submissions and information to the Tribunal in support of the request.

   The applicant request a period of 28 days, until Wednesday 18 November 2020, to make a written request to the Tribunal to refer the matter to the Minister for intervention and to provide submissions and information to the Tribunal in support of the request.  The applicants require this period of time to obtain and prepare the intended supporting information.

10. On 22 October 2020 the Tribunal relevantly advised the applicants:

    On 21 October 2020 we received a request for a period of 28 days, until Wednesday, 18 November 2020, to make a written request to the Tribunal to refer the matter to the Minister for intervention and to provide submissions and information in support of the request.  Please note that this matter is scheduled for hearing on 18 November 2020.  In accordance with the President’s Direction, all documents and submissions must be provided at least 7 days before a hearing  Therefore any such submissions must be provided by 11 November 2020.

11. On 11 November 2020, despite the above advise, the Tribunal was advised that these submissions would be provided by 13 November 2020.

12. On 13 November 2020 the following relevant submission was provided:

    On behalf of the applicants, it is conceded that the applicants do not meet the criteria for the visa applied for.

    The current purpose of the application to the Tribunal is to seek referral of the case by the Tribunal to the Department of Home Affairs, for the Department to refer the case for Ministerial Intervention under s.351 of the Migration Act 1958.  I refer to the information within Part 16, ‘Referrals for ministerial intervention’ of the President’s Direction, ‘Conducting Migration and Refugee Reviews, dated 1 August 2018.

    The applicants consent to the Tribunal deciding the review application without appearing before the Tribunal at a hearing.  I refer to Paragraph 5.6 of the ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’.

    The applicants are willing to attend the scheduled hearing however, if the Tribunal decides to obtain further information from the applicants.

    The applicants applied for review of a decision of the Department of Home Affairs to refuse their application for a Temporary Work (subclass 457) visa.  The visa application was refused, following a Department decision to refuse an application of Mr Calum Caldwell’s previous employer, Global Home Solutions Australia Pty Ltd to nominate the applicants for a Temporary Work (subclass 457) visa.

    Global Home Solutions Australia Pty Ltd applied to the Tribunal for review of the decision refusing its application to nominate Mr Caldwell.  The applicants applied to the Tribunal for review of the decision refusing their visa application.

    At the date that the application for review was lodged, 17 January 2019, the purpose of the application was to seek to obtain a favourable decision from the Tribunal, based on Global Home Solutions Australia Pty Ltd seeking to obtain a favourable decision to approve its application to nominate the applicants.  The applicants understand that Global Home Solutions Australia Pty Ltd went into liquidation in 2019 and the liquidators withdrew the application of Global Home Solutions Australia Pty Ltd to the Tribunal on 17 February 2020.

    As Mr Calum Caldwell is not the subject of an approved nomination by a standard business sponsor and Ms Fraser is not the subject of an approved or pending nomination by a standard business sponsor, the applicants concede that they do not meet the criteria for the visa applied for.

    East Coast Eco Pty Ltd has applied to the Department of Home Affairs to nominate Mr Calum Caldwell for a Temporary Skill Shortage (subclass 482) visa to work in the occupation of ‘Wall and Floor Tiler’.

    The applicants are prevented from applying whilst in Australia for a Temporary Skill Shortage (subclass 482) visa, by s. 48 of the Migration Act 1958.

    The applicants are seeking Ministerial Intervention, to substitute a decision of the Tribunal to affirm the decision of the Department to refuse their visa application, with a more favourable decision, such as to grant them a Visitor (subclass 600) visa for a short period, to enable them to apply for a subclass 482 visa whilst they are in Australia.

    The attached letter of East Coast Eco Pty Ltd gives information about the company’s operations, applications to the Department relating to the applicants and importance to the business of the nomination and employment of Mr Calum Caldwell. 

    The attached letter of Mr Calum Caldwell gives information about the past and present circumstances of himself and his family.  The circumstances of the applicants are summarised below.

    -Mr Calum Caldwell and Ms Fraser have lived in Australia, excepting short overseas visits, since March 2013.

    -The son of Mr Calum Caldwell and Ms Fraser, Mr Luca Caldwell was born in Australia on 28 August 2015 and has since lived in Australia, excepting short overseas visits.

    -The applicants have held previous Temporary Work (subclass 457) visas based on being nominated by previous employers.

    -The employment and visa status of the applicants, including their potential eligibility for a permanent visa, were negatively affected by two of the employers of Mr Calum Caldwell, including Global Home Solutions Australia Pty Ltd going into liquidation.

    -Mr Calum Caldwell is a skilled Wall and Floor Tiler, based on eight years’ experience in the trade in the United Kingdom.

    -Mr Calum Caldwell has been employed by East Coast Eco Pty Ltd during 2020 and is nominated for a subclass 482 visa by East Coast Eco Pty Ltd.  The attached employment contract is a new contract that was signed by the company and Mr Calum Caldwell on 12 November 2020, to be submitted with the company’s nomination application.

    -The applicants are unable to apply for a subclass 482 based on the employment and nomination, visa whilst they are in Australia, because of section 48 of the Migration Act 1958.

    -The applicants are currently unable to depart from Australia and return to the United Kingdom, because of the health pandemic and consequences, including the ‘lockdown’ in the United Kingdom, travel and border restrictions.

    -The applicants are currently unable to depart from Australia and travel to another overseas country, because of the health pandemic and consequences, including travel and border restrictions. The current general advice of the Australian Department of Foreign Affairs and Trade is ‘Do Not Travel’, including to New Zealand.

    -If the applicants remain in Australia beyond the expiry of their current Bridging visa B’s, which will expire 35 days after the date of a decision of a Tribunal, the applicants will become ‘unlawful non-citizens’.  The applicants could then each apply for a Bridging visa E to remain in Australia until they are able to depart from Australia.  The visa status of the applicants on departing Australia, based on Public Interest Criterion 4014 of the Migration Regulations 1994, would result in the applicants being subject to a preclusion period of three years from the date of leaving Australia, from applying for a subclass 482 or other temporary visa. 

    It is submitted that the facts and circumstances of the applicants warrant the case being referred by the Tribunal to the Department to be brought to the Minister’s attention.

    By reference to the ‘Ministers Guidelines’ related to Ministerial Intervention, it is submitted that there are ‘unique and exceptional circumstances’ in the applicants’ case.  In particular, it is submitted that:

    -    the circumstances of the applicants were not anticipated by relevant legislation;

    -    there are clearly unintended consequences of legislation; and,

    -    the application of relevant legislation leads to unfair or unreasonable results.

    It is submitted that the application of s. 48 and the potential application of PIC 4014 in relation to the applicants, in their personal and the wider circumstances, falls within the above Ministerial Guidelines.

13. The applicant provided the following statement:

    Kari, myself and Luca are citizens of the United Kingdom.  Kari and I were born in Glasgow, Scotland.  Kari and I have been living in Australia since March 2013.  On 28 August 2015, our son Luca was born in Newcastle, NSW.  Luca will start kindergarten in Newcastle in January 2021.  Our family is settled in Australia, this is our home.

    In March 2013, Kari and I arrived in Australia on Working Holiday visas.  In May 2014, we were granted Temporary Work (subclass 457) visas, based on sponsorship by an Australian business, Ventis Newcastle Pty Ltd for me to work as a Customer Service Manager.  Our intention was to apply for permanent residence after I had worked for the business for two years.  Unfortunately, the business went into liquidation around three months before I could apply for permanent residence, resulting in the termination of my employment and losing the opportunity to apply for permanent residence.

    In January 2016, I was sponsored by another business, Macleay River Meats to work whilst holding a subclass 457 visa.  The hours were very demanding, I was often working 12-hour days, which was unsustainable, including as Luca was an infant at that time.

    On 27 February 2018, I applied for a Temporary Work (subclass 457) visa, based on sponsorship by an Australian business, Global Home Solutions Australia Pty Ltd, to work as a Customer Service Manager.  An application of the company to nominate me for a subclass visa was refused.  As a result, on 15 December 2018, the Department of Home Affairs refused my visa application.  The company applied to the Administrative Appeals Tribunal for review of the decision refusing its application to nominate me. I applied to the Tribunal for review of the decision refusing my visa application.  My application to the Tribunal is the current application to the Tribunal.  In 2019, Global Home Solutions Australia Pty Ltd into liquidation, resulting in the termination of my employment and the company withdrawing its review application to the Tribunal.  As the application of Global Home Solutions Australia Pty Ltd to the Tribunal has been withdrawn, I understand that my application to the Tribunal cannot succeed.

    I am employed by East Coast Eco Pty Limited, a company that operates a business in Newcastle.  I am employed as a Wall and Floor Tiler. I worked for S years in the United Kingdom as a Wall and Floor Tiler tradesman, before coming to Australia. East Coast Eco has applied to the Department of Home Affairs to nominate me for a Temporary Skills Shortage (subclass 482) visa to work as a Wall and Floor Tiler.

    I accept that the Tribunal cannot approve my existing application.  I ask the Tribunal to consider referring my case for Ministerial Intervention, for the Minister of Home Affairs to grant me a visa, which will allow me to apply whilst I'm in Australia for a Temporary Skill Shortage (subclass 482) visa to work for East Coast Eco Pty Limited.

    I have obtained legal advice about my visa status and eligibility.  I understand that I am unable to apply for a subclass 482 visa whilst I am in Australia, because of the refusal of my previous subclass 457 visa application and as I only hold a Bridging visa. I understand that I need to obtain a new 'substantive visa', to be allowed to apply for a subclass 482 visa whilst I'm in Australia.  East Coast Eco has obtained approval as a Business Sponsor and has applied to nominate me for a subclass 482 visa.  I have the required skills and experience as a Wall and Floor Tiler to satisfy requirements to be granted a subclass 482 visa.  I can meet all other requirements, including regarding English language requirements, health and character requirements.

    I am unable to depart Australia with my family and apply overseas for a subclass 482 visa.  Due to COVID-19, it is difficult and expensive to leave Australia, there is a health crisis and lockdown in the UK, and travelling to another country is uncertain, complicated, would be expensive and involve mandatory quarantine.

    In the current situation, we are seeking the opportunity to apply for a subclass 482 visa whilst we are in Australia.  Kari and I have been in Australia for seven years and Luca has lived in Australia since birth in 2015. Luca is enrolled to start school at Charlton Christian College in January 2021.  We have been law-abiding and productive members of the Australian community, including through our employment. Kari has trained and worked in Australia in childcare.

    Our visa status has been dependent on and greatly affected by the failures of the two previous business sponsors.  The failures of these businesses were outside of my control.

    I am most willing to attend the hearing that is scheduled in the Tribunal on 1 8 November 2020, to provide further information to the Tribunal about myself, my family and the nomination by East Coast Eco Pty Limited. I also consent though, to the Tribunal making a decision in my application without hearing, on the basis of the information provided.

14. Relevantly, the following letter was provided by Ms Caitlin Danvers, Director of East Coast Eco Pty Ltd, dated 13 November 2020:

    I am a Director of East Coast Eco Pty Limited (ABN: 19 641 114 856).  On 21 May 2020, the company was established. The business previously operated as a sole proprietorship.  The company is based in Newcastle, NSW and provides energy efficiency services to the community, including Solar panel cleaning and servicing, installation of illume skylights, Whirly birds and subfloor installation, and gutter cleaning.  On 31 July 2020, the company registered the business name 'East Coast Tiling' and started providing Wall and Floor Tiling services.  The business diversified to provide the services due to the demand for and limited supply of these services in the region.

    The company employs Mr Calum Caldwell as a Wall and Floor Tiler.  Mr Caldwell is a skilled and experienced Wall and Floor Tiler.  Mr Caldwell holds a Bridging visa, which permits him to work for the company.  We are aware of the visa status of Mr Caldwell, including his application to the Administrative Appeals Tribunal for review of a decision refusing his application for a Temporary Work (subclass 457) visa, based on his sponsorship by a previous employer.

    On 12 October 2020, the company obtained approval from the Department of Home Affairs as a Standard Business Sponsor.  On 13 November 2020, the company applied to the Department of Home Affairs to nominate Mr Caldwell for a Temporary Skill Shortage (subclass 482) visa to work as a Wall and Floor Tiler.  The nomination application was submitted following unsuccessful advertising and attempts to employ an Australian person to work in the position.

    We have obtained legal advice about Mr Caldwell's visa status and we are aware that Mr Caldwell is unable to apply for a Temporary Skills Shortage (subclass 482) visa to work for our company, unless he holds a visa, which is not a Bridging visa-

    Mr Caldwell informs us that he is seeking to obtain a visa, to enable him to apply for a subclass 482 visa to work for our company.  We support Mr Caldwell's request to obtain a visa, to enable him to apply for a subclass 482 visa to work for East Coast Eco Pty Limited.

    East Coast Eco Pty Limited is committed to nominating Mr Caldwell for a subclass 482 visa, to enable him to work for our company as a Wall and Floor Tiler. The demand for these trade services in the Newcastle and Hunter region is high and there is a shortage of skilled tradespeople in this field…

1. In addition, the following documents were provided:

   ·Letter of the Dept of Home Affairs dated 12 October 2020, giving notification to East Coast Eco Pty Ltd of approval as a standard business sponsor;

   ·Letter of the Dept of Home Affairs dated 13 November 2020, acknowledging an application of East Coast Eco Pty Ltd to nominate Mr Calum Caldwell for a Temporary Skill Shortage (subclass 482) visa;

   ·ASIC documents evidencing the company status of East Coast Eco Pty Ltd and the company’s Registered Business Name of ‘East Coast Tiling’; and

   ·Employment contact between East Coast Eco Pty Ltd and Mr Calum Caldwell.

2. As the applicants have consented to the Tribunal deciding the review without them appearing at a hearing, it has proceeded to a decision in accordance with section 360(2)(b) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).

   Requirement for an approved nomination

5. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

6. As confirmed by the response to the Tribunal’s 359A invitation, the applicant acknowledges that the nomination application of Global Home Solutions Australia Pty Ltd was withdrawn and concedes he is not the subject of an approved nomination by a standard business sponsor.

7. For these reasons the requirements of cl.457.223(4)(a) are not met.

8. The second named applicant also does not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.  Nor is there any evidence that the second named applicant would be able to satisfy the requirements of any stream within the program as a primary visa applicant.

9. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met.  No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

Request for Ministerial Intervention

1. As detailed above the applicants and their representative have asked the Tribunal to consider referring this matter to the Minister for his personal intervention under s.351 of the Act. Section 351 of the Act states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavorable decision.

2. The Ministerial guidelines provide that the Tribunal may refer a matter to the Minister's attention where there are unique or exceptional circumstances.

3. It was submitted that the applicants’ circumstances are unique or exceptional because the circumstances of the applicants were not anticipated by relevant legislation; and/or there are there are clearly unintended consequences of legislation; and/or the application of relevant legislation leads to unfair or unreasonable results.

4. Essentially it is contended that, though no fault of the applicant, he is not the subject of an approved 457 nomination by a standard business sponsor because his proposed sponsor, Global Homes Solutions Pty Ltd went into liquation and he (appears to state) that he left another sponsor due to excessive work demands.  It was further submitted that another Australian employer, East Coast Eco Pty Ltd currently employs the applicant and has lodged a 482 visa nominating him.  In addition, it was contended that the family is settled in Australia, this is now their home and their child was born here.

5. However, Ministerial Intervention is exercised in rare cases and only where there are unique and/or exceptional circumstances and the Tribunal is not of the view, based on the applicants’ circumstances, that not being the subject of an approved nomination for a temporary visa, are unique and/or exceptional circumstances such that the Tribunal should refer this case. The Tribunal notes that the family has only ever been in Australia on temporary visas and, as such, could not have had a realistic expectation of a settled life in Australia unless and until a permanent visa has been granted. Further, the fact that they will become section 48 barred in not an unintended consequence of the legislation. The fact that the applicant’s previous sponsors/s has withdrawn the sponsorship is not at all unusual.

6. The Tribunal accepts that the applicant does have a new employer willing to sponsor him on a temporary visa however, should this nomination be approved, the applicant will need to determine how he can lodge a further visa for what is a different visa class.

7. The Tribunal notes it is open to the applicants to make a direct request for Ministerial Intervention.

8. Finally, the Tribunal notes that, given the current global pandemic, information about how and when the applicants can depart Australia are properly the decision of the Department.

   DECISION

9. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

   Karen Synon
   Member

   
   

   ATTACHMENT  -  claUSE 457.223 (extract)

   457.223

   …

   Standard business sponsorship

   …

   (4)The applicant meets the requirements of this subclause if:

   (a)each of the following applies:

   (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

   (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

   (ba)either:

   (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

   (ii)     each of the following applies:

   (A)the applicant is employed to work in the nominated occupation;

   (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

   (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

   (d)the Minister is satisfied that:

   (i)    the applicant’s intention to perform the occupation is genuine; and

   (ii)     the position associated with the nominated occupation is genuine; and

   (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

   (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

   (eb)if:

   (i)    the applicant is not an exempt applicant; and

   (ii)     subclause (6) does not apply to the applicant;

   the applicant:

   (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

   (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

   (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

   (f)either:

   (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

   (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

   …

   (6)This subclause applies to an applicant if:

   (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

   (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

   …

   (11)In subclause (4):

   exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.