Christhio (Migration)

[2022] AATA 2785

Christhio (Migration) [2022] AATA 2785 (20 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ivan Christhio

REPRESENTATIVE  Qi Wang (MARN 1686204)

CASE NUMBER:  1905644

HOME AFFAIRS REFERENCE(S):          BCC2018/4974082

MEMBER:Katie Malyon

DATE:20 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Training Subclass 407 (Class GF) visa.

Statement made on 20 May 2022 at 4:01 pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – Finance Manager – overqualified for the position – subject of an approved nomination – serious, ongoing harm and continuing hardship – exceptional economic or other benefit – unfair or unreasonable result – integration into the Australian community – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 407.214

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 February 2019 to refuse to grant the applicant, Indonesian national Ivan Christhio, a Training (Class GF) Subclass 407 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Mr Christhio applied for the visa on 9 November 2018. The delegate refused to grant the visa on the basis that Mr Christhio did not meet cl 407.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the nomination permitting him to undertake occupational training as a Finance Manager made by his proposed sponsor, Daabon Organic Australia (the Company), was not approved under s 140GB of the Act. A copy of the delegate’s decision was provided to the Tribunal.

   Tribunal’s s.359A letter

3. On 21 December 2021, the Tribunal wrote to Mr Christhio pursuant to s 359A of the Act. In its letter the Tribunal noted that, although the Company had applied for review of the delegate’s refusal of its nomination, on 10 December 2021 the Company advised the Tribunal that it had withdrawn its review application in respect of the occupational Finance Manager for Mr Christhio and the Tribunal had accepted its withdrawal. It noted that one of the requirements for grant of a Subclass 407 visa is that a nomination in relation to Mr Christhio has been approved under s 140GB of the Act as required by cl 407.214 of Schedule 2 to the Regulations and that nomination has not ceased.

4. The Tribunal stated that it appeared Mr Christhio is not the subject of an approved nomination as required by cl 407.214 of Schedule 2 to the Regulations and, as such, the decision under review must be affirmed.

   Response to the Tribunal’s s 359A letter

5. In response to the Tribunal’s s 359A letter, the Tribunal received notice of the appointment of registered migration agent Qi Wang as Mr Christhio’s representative as well as a submission from Ms Wang.

6. In her submission, the representative confirmed instructions from Mr Christhio that he ‘cannot accept’ his Subclass 407 visa cannot be granted.  The representative added she is instructed to provide the following reasons:

   1)in July 2019, the Company moved to Melbourne from Sydney and, as such, Mr Christhio was shuttling back and forth for a month.  However, the relocation of the Company meant that Mr Christhio was no longer required and, as a result, the Company withdrew its review of the delegate’s decision to refuse its nomination;

   2)the Company’s nomination was not approved by the delegate on the basis that Mr Christhio had extensive qualifications and employment as an Accountant and, therefore, he did not need the proposed training to fill the role of Finance Manager.  However, the representative observes that Mr Christhio’s qualifications and experience relate to Accounting which is outside the proposed occupation of Finance Manager ANZSCO 132211; and,

   3)the Company’s nomination was also refused on the basis that Mr Christhio had been employed as an Accountant for over 18 months and so did not need the proposed training.  However, the representative notes 12 months of full-time experience in the occupation is required and, therefore, Mr Christhio’s 18 months of experience should have been considered as a requirement for approval of the nomination rather than a reason for its refusal. 

7. As Mr Christhio responded to the Tribunal’s s 359A letter, the Tribunal invited him to attend a hearing.

   Hearing

8. Mr Christhio appeared before the Tribunal on 11 February 2022 to give evidence and present arguments. The representative also attended the hearing.

9. During the hearing, Mr Christhio confirmed that he thought he had done his part and that, even though he had qualified as an Accountant following his studies in Australia, the role of a Finance Manager was significantly different to the experience that he had gained working as an Accountant and, as such, he needed training for the role of Finance Manager.  He opined that the delegate’s view that he was overqualified for the position of Finance Manager is flawed as different skills are required. 

10. Mr Christhio said that, following the Company’s relocation in July 2019 to Melbourne, he travelled up and down for some time but then decided to move to work with a different business in Sydney following referral to the business from one of the Company’s Directors.  Mr Christhio confirmed that he has been working with his new employer Carolina Lifestyle Pty Ltd (Carolina Lifestyle) in the role of Accountant, an occupation which he said is acknowledged to be in high demand in Australia.  

11. The Tribunal observed that its review of the Company’s website confirms that it operates a retail outlet in Doody Street, Alexandria in Sydney.  Mr Christhio said he would need to look into it further as the Company’s head office moved to Melbourne in July 2019. 

12. Reiterating the gist of its s 359A letter, the Tribunal confirmed that it had no discretion and must affirm the delegate’s refusal of his Subclass 407 visa application on the basis that there is no approved nomination. Mr Christhio said he understood the Tribunal’s position in this regard.

13. The Tribunal then discussed with Mr Christhio the appropriateness of referring the matter to the Minister pursuant to s 351 of the Act. He said his representative had discussed this is a possibility. The Tribunal raised whether or not his new employer, Carolina Lifestyle, would be prepared to sponsor him on a Subclass 482 visa. Mr Christhio responded that he had raised this issue with the business but was told it would not be in a position to sponsor him: although the business is an approved standard business sponsor and has sponsored a few foreign nationals to work in Australia only some of its applications have been successful to date and COVID-19 has presented further some real issues for the retailer. He told the Tribunal that Carolina Lifestyle operates 13 stores, most of which had been closed down due to the COVID-19 pandemic and, as such, it had pivoted to online sales. Consequently, although he was employed as an Accountant the business was not able to pay him the market salary for the position as it was just trying to survive, even though its turnover is more than $1 million per month.

14. Brief discussion also ensued about the possibility of other visa pathways in light of Mr Christhio’s expressed desire to remain in Australia.  He confirmed that he has been working now for 4 years and has a favourable skills assessment in the occupation of Accountant (General) ANZSCO 221111 but still has insufficient points mainly because of his age to apply for permanent residence as a skilled migrant.  The problem, he explained, was that he did not do his Accounting professional year because he decided to focus instead on improving his English-language skills. 

15. The Tribunal noted that, having reviewed the Department’s movement records, it had established that Mr Christhio was granted a Subclass 485 Graduate Skilled visa on 29 April 2015 following completion of his undergraduate degree in Australia.  Mr Christhio confirmed these details and said that, having grown up in Asia, he took on whatever job he could after he completed his studies.  He was not in a position to take up an unpaid internship.  He reflected that he should have been more confident about his skills as an Accountant and deeply regrets not pursuing this further.  Consequently, he tried to change and so enrolled to do a Master of Accounting degree.  It was when he was nearing the end of his Master’s degree that he applied to be trained as a Finance Manager.

16. Mr Christhio also told the Tribunal that all of his immediate family live in Sydney.  His mother was granted an Employer Nominated Subclass 186 visa 4 years ago when she was sponsored by the employer.  His only sister has also been granted permanent residence because she was included in her mother’s application as she was still in high school at the time.  Further, he recently married an Indonesian national who is studying in Australia.  Mr Christhio also briefly referred to his involvement with his local church as an interpreter and translator.  He said he became NAATI accredited but has not renewed his accreditation since it expired. 

17. The Tribunal invited Mr Christhio to provide additional documentation after the hearing in support of its possible referral of the matter to the Minister. 

    Documentation lodged after the hearing

18. Following the hearing, the representative relayed Mr Christhio’s formal request that the Tribunal refer the matter to the Minister.  The representative’s submissions and documentation lodged in support of this request are discussed below.

19. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal has also considered whether this is an appropriate case to refer to the Minister pursuant to s 351 of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether Mr Christhio is the subject of an approved nomination for a Subclass 407 Training visa, made either by the Company or another approved temporary activities sponsor, for a program of occupational training.

    Nomination of a position

21. Clause 407.214 of Schedule 2 to the Regulations as applicable in this case is set out in full in the Attachment to this decision.  Essentially, it requires that:

    ·an improved temporary activities sponsor has nominated a program of occupational training in relation to the primary visa applicant;

    ·the nomination has been approved and has not ceased (emphasis added); and,

    ·there are is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B of the Regulations); or it is reasonable to disregard any such information.

22. The nomination in respect of training to be offered to Mr Christhio in the role of Finance Manager with the Company was refused by the Department on 9 November 2018.  The Company applied to the Tribunal for review of the decision to refuse that nomination.  However, on 10 December 2021 the Tribunal affirmed refusal of the nomination made by the Company for a training position in respect of Mr Christhio.  In the circumstances, as the nomination application made by the Company to which Mr Christhio’s Subclass 407 visa application relates has not been approved, it follows that he does not meet the criteria in

    
    

    cl 407.214(b) of Schedule 2 to the Regulations. Mr Christhio acknowledged at the hearing that no other business has nominated him for a program of occupational training.

23. Therefore, cl 407.214 of Schedule 2 to the Regulations is not met.

24. Since the requirements that must be met by a person seeking a Subclass 407 visa have not been met, the Tribunal finds that the decision under review must be affirmed.

    Is this an appropriate case to refer to the Minister?

25. Having found that the delegate’s decision must be affirmed because Mr Christhio cannot meet cl 407.214 of Schedule 2 to the Regulations, the next issue for the Tribunal to consider is whether this is an appropriate case to refer to the Minister as requested.

26. As noted above, 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 consistent with s 351 of the Act.

27. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s 351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s 351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

28. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s 351 of the Act.[1]  The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances (emphasis added).  After the hearing, the representative formally requested the Tribunal refer the matter to the Minister and she provided documentation in support of her request. 

    [1] >

    The representative submits that the circumstances which may be unique or exceptional in this case include, relevantly:

    ·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 permanent resident;

    ·exceptional economic, scientific, cultural or other benefit would result from the review applicant being permitted to remain in Australia; and,

    ·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 (emphasis added).

29. In addition, the Minister’s guidelines in relation to all cases referred by the Tribunal under
    s 351 of the Act state that the Department is required to provide information on any other

    relevant issues including:

    ·information about a person’s history of compliance with Australian laws, including immigration laws; and,

    ·the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia.

30. The Tribunal takes the issue of recommending referral of any matter to the Minister seriously.  It notes that the theme running throughout the relevant Ministerial Guidelines is that the case should involve unique or exceptional circumstances.  The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention. 

31. The Tribunal has considered the matters raised by the representative as a basis for referral to the Minister. 

32. First, strong compassionate circumstances that, if not recognised, would result in serious, ongoing harm and continuing hardship to an Australian family unit.

33. The representative has provided evidence that Mr Christhio’s mother Nuraeni Djuriah and his younger sister Joan Sherina Christhio were granted Employer Nomination Subclass 186 visas on 30 August 2019.  Mr Christhio told the Tribunal that his mother’s permanent residence was sponsored by her employer Schneider Electric under the Temporary Residence Transition scheme as she had been sponsored on a Subclass 457 visa in 2015.  However, given his age at the time, Mr Christhio was not able to be included in the application for permanent residence. 

34. The Tribunal accepts that Mr Christhio has close relatives, his mother and his younger sister, who are permanent residents of Australia.  However, no evidence has been provided to the Tribunal addressing the strong compassionate circumstances that, if not recognised, would result in serious ongoing and irreversible harm and continuing hardship to an Australian family unit, where at least one member of the family is permanent resident.  Further, no evidence of support from either Mr Christhio’s mother or his sister for referral of this matter to the Minister has been provided.

35. Second, exceptional economic or other benefit would result from Mr Christhio being permitted to remain in Australia.

36. The representative has provided a favourable skill assessment for Mr Christhio’s occupation of Accountant (General) ANZSCO 221111 issued by Chartered Accountants Australia and New Zealand dated 18 September 2018.  The Tribunal notes the assessment confirms it has favourably considered Mr Christhio’s Bachelor of Commerce – Professional Accounting from Macquarie University.  The representative has also provided a copy of Mr Christhio’s Master of Accounting issued by the Australian Institute of Business and Management T/A Kings Own Institute dated 13 February 2019.  Further, she has provided evidence of his Pearson PTE Academic English language test dated to August 2021 in which he scored 90 on each of the 4 test components of listening, reading, speaking and writing. 

37. In addition, the representative has provided a letter from Carolina Girilado, Creative Director and owner of Carolina Lifestyle, dated 15 February 2022.  The letter confirms Mr Christhio is employed in the position of Accountant with Carolina Lifestyle and that his salary effective 1 July 2021 is $47,250 per annum.  However, no evidence has been provided in relation to the number of Australian citizens and/or permanent residents currently employed by Carolina Lifestyle or to explain why Mr Christhio’s salary is well below the market salary for the position as determined by reference to websites such as Job Outlook[2] and is below the Temporary Skilled Migration Income Threshold of $53,900 as set out in IMMI 18/033.

    [2] >

    The Tribunal acknowledges that the occupation of Accountant (General) ANZSCO 221111 is currently on the New South Wales skilled occupation list.[3]  It also notes that the occupation continues to be listed on the Medium and Long-term Strategic Skills List (MALTSOL).[4]   The Tribunal accepts that the inclusion of Mr Christhio’s occupation on both the list of occupations in demand in NSW and the MALTSOL gives weight to the representative’s submission that there would be exceptional economic benefit resulting from Mr Christhio being permitted to remain in Australia.

    [3] >

    Third, the representative submits that the application of relevant legislation in this case (that is, the lack of an approved nomination for the reasons set out above at paras [21] – [23]) leads to an unfair or unreasonable result. 

38. The representative has provided evidence of the Company’s relocation to Melbourne.  As noted above, in evidence to the Tribunal during the hearing Mr Christhio said the Company’s move to Melbourne from Sydney was the reason he could not continue to work for the business as it meant leaving his family here in Sydney.  The representative has also provided evidence of payslips issued to Mr Christhio by the Company.  

39. In addition, the representative has provided a reference letter from the Company’s Quality and Certifications Manager dated 18 March 2019 confirming Mr Christhio’s employment with the Company as an Accountant since 18 July 2017.  The letter confirms worked 20 hours per week consistent with conditions attached to his Student Subclass 500 visa and was earning $35,000 per annum.  The letter sets out the duties undertaken by Mr Christhio in his role as Accountant. 

1. The representative also provided evidence of Mr Christhio’s marriage to his wife, Indonesian national Catherine Edelainna Tanasal on 22 January 2022.  In addition, she provided evidence of her enrolment in a Bachelor of Accounting with the Australian Institute of Business and Management Pty Ltd T/A Kings Own Institute.  The course commenced on 1 November 2021 and is due for completion on 27 October 2023.  In the event Mr Christhio is not permitted to remain in Australia, it appears that either he and his wife will be separated to allow her to continue with her studies in Australia or, in the alternative, the couple may return to Indonesia.

2. The Tribunal acknowledges receipt of documentation submitted.  However, it notes that the representative has made no submissions in relation to why application of the legislation in this case leads to an unfair or unreasonable result in this case.  The Tribunal accepts that the Company’s decision to relocate its head office to Melbourne has impacted Mr Christhio and initially required him to travel to Melbourne on a regular basis.  No explanation has been provided as to why he could not simply relocate to Melbourne.  Further, no evidence has been provided regarding signed statements from either Mr Christhio or his wife Ms Tanasal regarding their future plans to remain in Australia.

3. Fourth, in support of matters for consideration by the Department following referral of a matter to the Minister, the representative has provided information to address Mr Christhio’s

   
   

   history of compliance with Australian laws.  She has provided:

   1)a Notice of Assessment issued by the Australian Taxation Office (ATO) confirming Mr Christhio’s lodgement of his 30 June 2021 tax return with the ATO to demonstrate his compliance with Australian taxation law; and, 

   2)an Australian Federal Police certificate dated 11 February 2022 confirming that there are no disclosable court outcomes recorded against Mr Christhio’s name.

4. Further, to address the Department’s consideration of the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, the representative submits Mr Christhio has integrated well into the Australian community having first arrived here 10 years ago on 16 March 2012 as a 17-year-old.  Subsequently, he has held multiple Student visas and obtained the following qualifications in Australia:

   ·Diploma of Commerce from Sydney Institute of Business and Technology in 2013

   ·Bachelor of Commerce – Professional Accounting from Macquarie University completed on 8 April 2015; and,

   ·Master of Accounting from Australian Institute of Business and Management T/A King’s Own Institute completed on 13 February 2019.  The academic transcript provided confirms that he is a high achieving student who has a Distinction average.

5. As evidence of his high level of integration into the Australian community, the representative has provided:

   1)a signed letter from Nicholas Hung, Senior Pastor within Antioch Gospel Church dated 11 February 2022;

   2)NAATI Community Language Certificate issued by Michael Nemarich, National Operations Manager with NAATI dated 13 August 2020; and,

   3)NAATI Paraprofessional Interpreter Certificate dated 23 October 2017.

6. Pastor Hung confirms that he has known Mr Christhio since early 2013 and has had many opportunities to converse with Mr Christhio, witness his personal development and get to know him on a personal level.  He stated that Mr Christhio is a dedicated member of the Antioch Gospel Church and is particularly well liked for his interpretation skills, regularly providing a valued bridge for international students and other less-fluent English speakers within the church to allow them to thereby integrate into the Church’s English-speaking environment and adapt to life in Australia.  Pastor Hung also states that Mr Christhio actively serves the church community by providing live simultaneous translation from Indonesian to English and vice versa for the church’s regular weekly services.  He also comments on Mr Christhio’s voluntary activities including leading weekly Life Group meetings for young adults and his involvement with the NextGEN Antioch Kids program as well as his involvement in inventory management and creative workshops. 

7. The Tribunal accepts that Mr Christhio has spent the majority of his adult life in Australia and has a high level of integration into the Australian community, in particular, the Indonesian community in Sydney attending the Antioch Gospel Church.

   Consideration

8. Having considered documentation provided, the Tribunal will refer this case to the Minister for possible consideration by the Minister.  The Tribunal will forward to the Department documentation provided to the Tribunal by the representative to demonstrate that this case meets the unique or exceptional circumstances in the Minister’s guidelines extracted above.  Further documentation may be provided by Mr Christhio in support of the application to the Minister.  In this regard, the Tribunal notes that Carolina Lifestyle may wish to provide: a Financial Report for the year ended 30 June 2021; tax returns for the business downloaded from the ATO’s website; evidence of the employment of Australian citizens and permanent residents; and, a signed contract of full-time employment with Mr Christhio including a position description for the occupation of Accountant with a salary which reflects the Australian market salary for such a position.  Further, Mr Christhio may also wish to provide supporting letters from his family living in Australia and members of the Antioch Gospel Church.

   DECISION

9. The Tribunal affirms the decision not to grant the applicant a Training Subclass 407 (Class GF) visa.

   Katie Malyon

   
   Member