Corrado (Migration)

Corrado (Migration) [2021] AATA 2399 (10 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Barbara Corrado
Mr Fabio Petulicchio
CASE NUMBER:  1818503
HOME AFFAIRS REFERENCE(S):          BCC2017/1569272
MEMBER:Phoebe Dunn
DATE:10 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 10 May 2021 at 9:37am
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457––no approved sponsor –applicant was not a subject of an approved nomination – Ministerial intervention – strong compassionate circumstances – decision under review affirmed
LEGISLATION
Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018
Migration Act 1958, ss 65, 140GB, 351, 359
Migration Regulations 1994, Schedule 2, cl 457.223
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 2 May 2017.
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 (Cth) (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.
The delegate refused to grant the visas on 5 June 2018 on the basis that cl 457.223(4)(a) was not met because the related nomination application lodged by Degroup Entertainment Pty Ltd (the nominator), nominating the first named applicant (the applicant) to work in the nominated position of Sales and Marketing Manager (ANZSCO 13112) (the nomination), was refused by a delegate of the Minister on 1 May 2018, and as such the delegate found that the nominee was not the subject of an approved nomination.
By letter dated 9 April 2021, the Tribunal wrote to the applicants, inviting them to comment on or respond to information the Tribunal considered was adverse to their case, in accordance with the requirements of s 359A of the Act. The Tribunal provided the following particulars:
a.On 17 March 2021, the Tribunal affirmed the decision to refuse the nomination related to the applicant’s Subclass 457 visa application;
b.A review of the applicant’s Tribunal file and Departmental records suggests that the applicant is not the subject of a current approved or pending nomination by a standard business sponsor or a nomination application on review with the Tribunal; and
c.The Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 commenced 18 March 2018 and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.
The Tribunal explained that the information was relevant to the review because it is a requirement under cl 457.223(4)(a) of the Regulations for the grant of a Subclass 457 visa that the applicant is the subject of an approved nomination by a standard business sponsor approved under s 140GB of the Act, and, as a consequence of the Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018, a new application for approval cannot be made. The Tribunal explained that if the Tribunal relied on the information in making its decision, it may find that the applicant is not the subject of an approved nomination and that this would be the reason or part of the reason for affirming the decision under review.
In response, the applicants stated that they understood that they did not meet the requirements for the grant of the Subclass 187 visa, but wished to proceed to a hearing to make submissions on the exercise of the Tribunal’s discretion to refer the matter to the Minister for the purpose of consideration of the exercise of his powers in s 351 of the Act.
The applicants, Ms Barbara Corrado and Mr Fabio Petulicchio, appeared before the Tribunal in person on 28 April 2021 to give evidence and present arguments. The first named applicant had earlier appeared before the Tribunal on 10 March 2021 by video-conference, as a witness for the nominator in the review of the decision to refuse the nomination. The Tribunal also received oral evidence from Ms Ada Del Vescovo (the applicant’s mother), Mrs Gabriella Del Vescovo (the applicant’s grandmother) and Ms Maria-Teresa (Terry) Zarosinski (the applicant’s aunt and employer). The hearing was heard with the assistance of an interpreter in the Italian and English languages.
The applicants were represented in relation to the review by their lawyers, Mrs Shereen El-Ali and Mr Joseph Italiano. Mrs El-Ali attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
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.
The applicant applied for the Subclass 457 visa on the basis of the nomination by the nominator nominating her to work in the nominated position of Sales and Marketing Manager (ANZSCO 13112). The nomination application was refused by a delegate of the Minister and while the nominator applied for review of that decision, it was affirmed on review by the Tribunal on 17 March 2021.
A review of the applicant’s records shows that the applicant is not the subject of a current approved or pending nomination by a standard business sponsor or a nomination application on review with the Tribunal. As a consequence of the Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018, the Subclass 457 visa class was repealed and closed to new applications.
This means that the applicant is not the subject of an approved or pending nomination as required by cl 457.223(4)(a), and there is no prospect of the applicant lodging a new application.
For these reasons, the Tribunal finds that the requirements of cl 457.223(4)(a) are not met.
The only basis of the application of the second named applicant is that he is a member of the family unit of a person who holds a Subclass 457 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl 457.321. As the primary visa applicant does not meet the primary criteria and has not been granted a Subclass 457 visa, the decision to refuse the application of the second named applicant must also be affirmed because he does not satisfy cl 457.321.
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.
Ministerial Intervention
The applicants have requested that the Tribunal exercise its discretion to refer the matter to the Minister under s 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 consistent with s 351 of the Act.
The Tribunal has carefully considered whether the circumstances of this case warrant referral to the Minister under s 351 of the Act. 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.
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. 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. The circumstances which the applicant has identified as demonstrating unique or exceptional features 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 Australian permanent resident (Ground 1);
·the applicants cannot be returned to their country of citizenship due to circumstances beyond their control (Ground 2);
·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) (Ground 3); and
·Exceptional economic, scientific, cultural or other benefit that would result from the applicant being permitted to remain in Australia (Ground 4).
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 on this matter is that the case should involve unique or exceptional circumstances which would warrant the Minister’s intervention. The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention.
The Tribunal notes that not every case is appropriate for referral, regardless of the contributions made by the individuals or feelings of sympathy for those concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia. The guidelines indicate that the circumstances must be unique or exceptional to warrant consideration.
Prior to the hearing, the applicants provided a significant volume of information to support a request for Ministerial Intervention, which was discussed at length at the hearing and which the Tribunal has considered. Further supporting submissions and documentation were received post hearing within the stipulated timeframe. Having considered the supporting information, the Tribunal is of the view that the applicants’ circumstances warrant a referral to the Minister.
In relation to Ground 1, the applicants have provided extensive submissions dated 21 April 2021 stating that there are 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. The applicants have noted, in particular, that all of Ms Corrado’s close relatives on her mother’s side live in Australia and are Australian citizens. This includes Ms Corrado’s mother, sister, grandmother, grandfather (since deceased), nieces and nephew to whom the applicants’ have an extremely close connection. In a written statement dated 21 April 2021, the applicants have described at length the closeness of the family connection, including their role providing support, assistance and companionship to Ms Corrado’s grandmother and grandfather (when he was still alive). They note the joy they have in hosting functions for family and friends and the pride they have in purchasing their first home close to the applicant’s sister. They note the love they have for Australia and their passion for travelling, the contributions they make to the local community and to the environment and the financial and emotional investment they have made in building a life in Australia. They note the difficulties they have had conceiving and the recent joy in discovering that they had finally been successful and they were expecting a baby. In conclusion, they state:
It has not been easy to summarise almost seven years of events, especially when it is your life you are referring to. Fabio and I have had some dark, difficult moments, but we mostly have had an intensive, emotional, and joyful life, thanks to our Australian family, friends, colleagues, employers, neighbours, local food suppliers and retailers. We love Australia and we would be totally heartbroken if we were asked to leave. We felt at home from the first moment we landed at Tullamarine Airport on the 12th of June 2014, and our attachment to Australia has grown exponentially over the years. We would like to be able to see our child grown in such a spectacular, altruistic, generous, and culturally rich country, with his grandmother, great-grandmother, aunties, uncles, cousins, great-uncles, great-aunties, honorary aunties and uncles, friends.
The applicants have provided a submission dated 21 April 2021, together with Attachments A to O, addressing their claims under Ground 1, which includes:
a.Evidence of expenditure on assets such as a car, house and furniture;
b.Investment in the applicant’s MBA ($27,685);
c.Australian Red Cross donation history for the applicants;
d.Evidence of the applicant’s pregnancy with a due date of 27 August 2021;
e.AFP Police Certificates for the applicants;
f.Photographic journal of the applicants’ Australia holidays from 2015 to 2021;
g.Photographic journal of time spent with family members and friends in Australia in 2012 and then from 2014 onwards, such as birthdays, holidays, weddings, graduations and other significant events;
h.References from family members and friends, together with evidence of their Australian citizenship, including:
i.Letter dated 18 April 2021, from family friend Andrew Riepsamen attesting to their contribution to family, friends and the local community;
ii.Letter dated 16 April 2021, from Ms Emily Moore, attesting to the support given by the applicant to her and her contributions to the community and commitment to the environment, noting that she would be ‘absolutely devastated if she was unable to be a part of the applicant’ baby’s life;
iii.Letter dated 16 April 2021 from Karin and Jenry Ziemnicki, attesting to the contribution of the applicants to Australia and noting the importance of keeping the family together, especially now that the applicant’s grandmother has been widowed;
iv.Letter dated 17 April 2021 from Stacey Cini attesting to the attributes of the second named applicant and his contribution to the community;
v.Letter dated 18 April 2021 from Mrs Adriana Del Vescovo, the applicant’s aunt, attesting to the close relationship she has with her niece, the importance of the contribution the applicants make to the care of her parents (the applicant’s grandparents), and the applicant’s sister and her children (the applicant’s niece and nephew), noting that the applicants are ‘an essential part of our family in Australia’. Mrs Del Vescovo also notes their contribution to the Australian community and to the environment;
vi.Letter dated 18 April 2021 from Christina Iannaccio providing character references for the applicants, noting their compassion, work ethic and family orientation;
vii.Letter dated 18 April 2021 from Claudia Pearl Sacco, noting their commitment to family and friends and contribution to the local community and to Australia generally;
viii.Letter dated 18 April 2021 from Jean Beach attesting to the work ethic, caring nature and integrity of the second named applicant;
ix.Letter dated 18 April 2021 from Lauren Kelly, attesting to the friendship they share and the applicant’s qualities of dependability, trustworthiness and commitment to community service;
x.Letter dated 18 April 2021 from Maddison Bosevski attesting to the work ethic, honesty, integrity and encouragement of the second named applicant;
xi.Letter dated 18 April 2021 from Michelle Nguyen attesting to the qualities of the applicants and their commitment to the local community, and noting that they have ‘embraced our culture and what it means to be Australian’;
xii.Letter dated 20 April 2021 from Ms Samantha Corrado, the applicant’s sister attesting to the support her sister has given to her and her family and the applicants’ ‘unconditional love for us and our two kids’. Ms Corrado also notes how excited they are to welcome the applicants’ first child and that her children can’t wait to become ‘big cousins’ . She states ‘they are our family and we would love them to be able to stay’;
xiii.Letter dated 14 April 2021 from Piera Montibeller, an accountant employed by the applicant’s nominator, noting that she has worked with the applicant since July 2017 and attesting to her capacity as an employee and the disadvantage that would be experienced if she was not able to stay;
xiv.Letter from Mr Glenn Baxter, Managing Director of Baxter IT dated 16 April 2021, as testimony to the applicant’s professionalism, management skills and contribution to the growth and continued expansion of the business;
xv.Letter dated 16 April 2021 from Matthew Rogan, a work colleague of the applicant since March 2015, attesting to the applicant’s work ethic and professionalism and her value to the business; and
xvi.Letter dated 16 April 2021 from Peter Ferrari of LEBA Nominees Pty Ltd, financial advisor to the nominating business attesting to the applicant’s efficiency and competency and her value to the business.
In relation to Ground 2, the applicants assert that they cannot be returned to their home country of Italy during the COVID-19 pandemic, with Italy remaining one of the worst affected countries in the world, having over 514,660 active cases at 14 April 2021. The applicants have provided the following submissions and documentation under Ground 2:
a.Country Report and Information on Italy and COVID-19;
b.Article: Italy reports 322 COVID-19 deaths on Saturday, 13,817 new cases; and
c.International Health Care Systems Profiles – Italy.
In relation to Ground 3, the applicants assert that but for the alleged negligence of their former migration agent and the alleged fraud perpetrated on them, the applicants would have successfully secured a Subclass 457 visa and ultimately permanent residency. The applicants have provided the following submissions and documentation under Ground 3:
a.The applicants suffered as a consequence of the alleged fraud perpetrated on the applicants by their former migration agent, stating that:
The MARA registration scheme did not protect this family and there are no legislative avenues for victims of negligence perpetrated by a fraudster. But for the negligence of the professional the review applicant would have been granted the subclass 457 and subsequently applied for permanent residency under transitional provisions.
b.Chronology of events between Barbara Corrado and Frank Fazzito;
c.Sanctioned agent detail - Office of the Migration Agents Registration Authority, in respect of Frank Fazzito; and
d.Submission dated 7 May 2021 with evidence that the occupation of Property Manager was on the Consolidated Sponsored Occupations List – CSOL in March 2017 when the review applicant engaged Frank Fazzito to lodge her Subclass 457 application before it was taken off the list on 1 July 2017. In the submission, the applicants note that subsequent changes to the skilled migration programme meant that the occupation of Property Manager was no longer on the Medium and Long-Term Strategic Skill List at the time the nomination was finally lodged and that while Mr Fazzito asked them whether the role included any marketing elements, neither they nor the nominator were aware that Mr Fazzito had changed the nominated occupation from Property Manager (which was the role being performed by the applicant) to Sales and Marketing Manager (ANZSCO 131112).

In relation to Ground 4, the applicants assert that there would be a detrimental impact on the Australian business owners they work for if they did not secure the Subclass 457 visas, noting that the applicant’s sponsor has recently purchased a $136 million shopping mall, making the work of the applicant event more critical for the business. The applicants have provided the following submissions and supporting documentation under Ground 4:
a.Submission dated 19 April 2021 from the applicant’s nominator, De Group Entertainment Pty Ltd, providing a detailed description of the business and the nominee’s role with the business, and the impact on the business should the nominee not be permitted to remain in Australia;
b.The Age newspaper article dated 7 April 2021 (p.22) confirming the purchase of a new shopping plaza by De Group Entertainment Pty Ltd;
c.Employment Contract for Barbara Corrado and recent payslip dated 14 April 2021;
d.Reference letter dated 17 April 2021 from Lou Tran of Stella Pizza Pty Ltd, Fabio Petulicchio’s (the secondary applicant’s) employer;
e.Photos of Fabio Petulicchio at work;
f.Current payslip for Fabio Petulicchio; and
g.Various online articles evidencing hospitality employee shortages in Australia regarding Fabio Petulicchio’s employment: Employers face staff shortages post-JobKeeper; Unemployment rate still falling as COVID economic recovery continues; Hospitality bid for special foreign staff visas.
At the hearing, the Tribunal received extensive oral submissions from the applicants and witnesses in support of the applicant’s request for Ministerial Intervention, consistent with the applicants’ written submissions and supporting documentation. The Tribunal noted the extensive submissions and supporting documentation it had received and invited the applicants to bring to the Tribunal’s attention any additional information they considered relevant to their request for Ministerial Intervention. This oral evidence is summarised below, together with the evidence of supporting witnesses.
Evidence of Ms Barbara Corrado
At the hearing Ms Corrado confirmed that all her close relations on her mother’s side reside in Australia and have Australian citizenship, including her mother, sister, grandmother, grandfather (since deceased), niece and nephew, as well as extended family including uncles, aunties and cousins. She stated that her father died approximately 15 years ago and that her mother lives with her sister and her sister’s family and her grandmother. She stated that they purchased a house very close to her sister and her grandmother so that they could see each other frequently. She stated that they visit her grandmother, who is now 92 years old, regularly and provide companionship, support and assistance. She stated that she speaks to her grandmother on the phone every day. She stated that she would also visit her grandfather every week and take him on outings from the nursing home he was in, noting that he was suffering from Dementia.
Ms Corrado stated that she was born in Italy, but her sister was born in Australia when they lived here for a year when she was young. She stated that they would travel from Italy to visit her relatives in Australia regularly when she was young. She stated that her sister moved to Australia with her husband and had their first child in Australia nine years ago.
Ms Corrado stated that when she and Mr Petulicchio (Fabio) moved to Australia she was studying a Master of Business Administration and commenced working part-time for the nominating business on 23 March 2015. She stated that she has always worked for the same company and is very loyal to them. She stated that she and Mr Petulicchio love Australia and have spent a lot of time travelling in Australia and experiencing the culture, food and environment. She stated that they are both hoping to be able to make Australia their permanent home.
Ms Corrado stated that Mr Petulicchio has been working for the same business since the beginning (a group of pizza restaurants) and has worked up in the business to the level of assistant manager and is indebted to them. She stated that they rely on him and respect him and he is the only one they trust to make the pizza dough for the business.
Ms Corrado stated that she and Fabio are pregnant with their first child and she is hoping that she will be permitted to remain in Australia so that their child can grow up in Australia and be with her family and have the benefit of all the support from her mother, grandmother, sister, aunts and uncles. She stated that her mother would want to spend time with her and her sister and support both and she would never want to ask her to choose between her and her sister. She stated that it would be extremely hard on her family, in particular her mother, grandmother and sister, if they were not able to stay.
In relation to the second ground she stated that she would be very scared right now to go back to Italy because of the pandemic, for herself and husband and that the prospect was even more terrifying for their unborn child. She stated that she understands she will experience the ‘normal trouble that all mums and dads experience’ but that it would be better to be in a safer environment, particularly as first time parents. She stated that she is scared of the stories of death and an unsanitary environment and would not feel comfortable raising a child there at the moment. She stated she is not sure if she is eligible to receive the vaccine at the moment due to her pregnancy. She noted that prior to COVID-19, unemployment in Italy was very high and that this had been exacerbated by the global pandemic. She stated that she was very worried that they would not be able to get employment and they would have a new born baby and no support.
In relation to the third ground, Ms Corrado reiterated their allegations regarding their former migration agent, stating that she felt like they were a victim of his negligence and unprofessionalism. She stated that she trusted him and it was only by chance that they discovered that he had been deregistered. She stated that he had ruined their lives and she and her husband has suffered great emotional and mental distress as a consequence of his actions.
In relation to the fourth ground, Ms Corrado noted that the business is very busy at the present time because it is rapidly expanding, particularly with the acquisition of a new shopping centre, involving 90 new tenants for which she has responsibility. She stated that she was focused on continuing to work for the nominating business as long as she is able to in the lead up to the birth of her child. She stated that she is the most experienced employee at the business and that her employer relies on her and she believes she plays a vital role. She stated that she could have found another job a long time ago but she is loyal and attached to the business. She stated that they are currently recruiting new staff and she will assist with training and induction. She stated that she has made great friendships at her workplace which won’t be easy to replace and that it will be difficult for her employer to find a suitably qualified and experienced person to fill her position.
Evidence of Mr Fabio Petulicchio
At the hearing, Mr Petulicchio gave oral evidence consistent with that of Ms Corrado. He stated that he considers his wife’s family to be very important to him, noting that he does not have many close relatives still alive and he considers her family to be his own. He stated that he has worked hard for the same employer since he arrived in Australia and is very loyal to them. He stated that the business was not able to find staff at the moment due to COVID-19 and they were heavily reliant on him. He stated that the business would be badly impacted if he had to return to Italy because there is no one else working at the business with his skills and experience and it is very difficult to find staff at the moment in the restaurant industry, particularly staff that are reliable, trustworthy and experienced.
He stated that the other employees are very young and he acts as their mentor as well as their manager and considers many of them to be his friends. He stated that many are young ‘kids’ and he is very proud of their level of responsibility and achievements. He stated that many have written letters of support and he is very touched to read what they have said about him.
Mr Petulicchio stated that he believed that if they had met their current migration agent at the beginning they would have got citizenship by now. He stated that their former migration agent lied to them, avoided them and failed to respond to their questions at critical periods. He stated that they put their money and trust in the migration agent and wanted to do it properly and follow all the rules. He stated that he feels let down by him. He stated that they both went through a very dark time when they found out that the nomination had been refused. He stated that they had delayed having children until they had a resolution on their visa application but decided to proceed as the clock was ticking.
Evidence of Ms Ada Del Vescovo
Ms Del Vescovo gave oral evidence attesting to the importance of the family unit and the impact on herself and other family members if her daughter was not permitted to stay in Australia. She stated that she is very excited that her daughter is going to have a baby and that she doesn’t want to miss out on watching her future grandchild grow. She stated that she is now too old to travel across the world to see her grandchild and that it is not safe to do so at the moment anyway. She stated that the impact on her and her mother would be devastating.
Ms Del Vescovo stated that she has watched all the hard work and commitment her daughter and son-in-law have put into the Australian community and building a life in Australia. She stated that she was extremely disappointed in their former agent and believed he had damaged them and their family. She stated that she was desperately hoping that the Minister will look favourably on their circumstances and intervene in this case.
Evidence of Mrs Gabriella Del Vescovo
Mrs Del Vescovo (the applicant’s grandmother) stated that it would have a ‘great impact’ if her first granddaughter was not allowed to stay in Australia. She described the joy it gives her to have her family around and the support they provide. She stated that it would be a terrible disappointment if she was not able to have the joy of seeing their child grow, stating that it would make her feel ‘empty’ if she was not able to see them. She stated that it would give her ‘immense pleasure’ if the child could be born here and they were permitted to stay. She stated that she had spent a lot of time around Ms Corrado when she was younger and had disciplined her when necessary. She stated that they had a very strong bond and were very close.
Evidence of Ms Terry Zarosinski
Ms Zarosinski gave oral evidence addressing her role as the applicant’s employer and her personal relationship as her aunt. In relation to the employment she reiterated her extensive written submissions emphasising the importance of Ms Corrado to the business and the difficulty they would have in replacing her, particularly at such a critical time when the business was going through rapid expansion. Ms Zarosinski spoke about the personal and professional distress that refusal had caused her. She stated that she felt responsible, noting that she had previously processed applications herself, but on this occasion she had determined to engage a ‘professional’ to ensure the success of the application. She stated that she had trusted the agent to do the right thing by the business and by the applicants and to find out he had lodged an application for the wrong role was devastating. She stated that she would be devastated if they had to return to Italy as a result of his negligence, noting the key role she played in the success of the business and that her role was critical in the context of the successful acquisition of the new shopping centre
Ms Zarosinski stated that as Ms Corrado’s aunt, she would be personally devastated if she lost her niece back to Italy. She noted that they had always been very close and that she was like a second mother to Ms Corrado. She stated that she would feel very sad if she did not get to see the applicants’ first child grow up. She stated that she felt responsible for the position they found themselves in, stating that if it were not for the actions of the former migration agent she believed they would not be in the position they are in today.
In closing submissions, the applicants’ representative stated that they had made submissions and provided supporting evidence addressing the four grounds raised by the Tribunal in support of their application for Ministerial Intervention. She submitted that cumulatively the circumstances constituted unique and exceptional circumstances warranting referral to the Minister for Ministerial Intervention. She stated that when the nominating business had engaged the services of the former representative in March 2017, the role of Property Manager was on the list of occupations for the purposes of the nomination. She stated that this changed in July 2017 and it was at this stage that the agent had changed the application, seemingly without the knowledge of the applicants and that this was when all the issues first arose.
The Tribunal has carefully considered the applicant’s claims and considers that cumulatively, the applicant’s circumstances constitute unique and exceptional circumstances that would warrant consideration by the Minister for the exercise of his Ministerial Intervention powers.
The Tribunal notes that all of Ms Corrado’s immediate family and many extended relatives on her mother’s side reside in Australia and are Australian citizens including her mother, sister, grandmother, niece, nephew, aunts, uncles and cousins. The Tribunal notes the extensive oral and written evidence attesting to the ongoing and irreversible harm it would have on them and the continuing hardship it would place on their family, who are all Australian citizens and are part of their immediate family unit. The Tribunal notes and accepts the close relationship Ms Corrado has with her grandmother and the emotional and physical support they provide and the companionship they give to her. The Tribunal accepts that there would be considerable impact on her other family members, most notably her mother, sister, niece and nephew if they were not permitted to stay. Having considered the information before it, the Tribunal is persuaded that the applicants meet the guidelines relating to 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 that would warrant intervention on this ground.
The Tribunal further notes that the applicants have provided letters of support from friends and colleagues of the applicants who are also Australian citizens and permanent residents highlighting their character, involvement and contribution to the local community. Having considered the information before it, the Tribunal considers this evidence to add context and support to the applicant’s claims.
The Tribunal notes and accepts the applicants’ submissions that as a consequence of the global pandemic, the applicants cannot readily be returned to their country of citizenship due to circumstances beyond their control. The Tribunal also notes and accepts that they are fearful of doing so with the impending birth of their first child and that current circumstances would prevent them from getting any support from their family who would find it difficult to travel to Italy for health and other reasons.
The Tribunal has noted the submissions and supporting evidence alleging that the negligence of their former agent caused the application to fail at first instance. While the Tribunal makes no findings in relation to those allegations, the Tribunal notes that the nomination failed because the nominated occupation of Sales and Marketing Manager was not the occupation being undertaken by Ms Corrado and that the nominator and Ms Corrado both believed that the nomination and visa applications were for the nominated position of Property Manager, which was the role Ms Corrado was undertaking. The Tribunal accepts that the nominator and the applicants trusted and relied upon their agent to ensure the application was appropriate and complied with the requirements and that they consider themselves victims of his lack of professionalism and integrity. The Tribunal considers this to add context to the applicant’s claims and current predicament.
The Tribunal also considers that the application of the legislation would lead to unfair or unreasonable results in this particular case, having regard to the basis of refusal of the nomination application on review and the information before it regarding the applicant’s period of employment with the nominating business and the ongoing nature of that employment. The applicant has been in Australia since June 2014 and remains in gainful full-time employment with the nominating business where she has worked since 23 March 2015. The applicant’s employer has provided a letter of support stating that the applicant is a vital, valued, respected and important member of the team and critical to the successful integration of new acquisitions into the business. The secondary applicant has provided evidence of his long term employment with his current employer and the value they place on his skills, commitment and integrity, together with letters of support from his employer, colleagues and friends.
The applicants have both noted their commitment to Australia and their enduring desire to continue to live in Australia, surrounded by their family and friends and raise their child in Australia. The have both noted their desire to continue to contribute to Australian society. The applicants have noted the hardship experienced by them as a consequence of the visa process, including ‘dark times’ and despair. The applicants have made submissions regarding the refusal of the visa leading to an unfair or unreasonable result in these circumstances.
The Tribunal also notes and has considered the applicants’ submissions regarding the impact on their current employers should they not be permitted to remain in Australia. While the Tribunal does not consider the economic implications identified to be of the nature contemplated under Ground 4, the Tribunal considers these submissions add weight to the applicants’ claims, particularly in the context of the global pandemic and the difficulty of attracting and retaining suitably qualified and experienced staff in their respective industries. The Tribunal notes in particular the submissions of Ms Corrado’s current employer regarding the important role she plays in the business and the critical nature of her functions in the context of the recent acquisitions of new businesses and assets into the group.
The Tribunal has considered the applicant’s case and the Ministerial Guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Phoebe Dunn
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.

[2021] AATA 2399

10 May 2021

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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