Cowan (Migration)

Cowan (Migration) [2024] AATA 1619 (29 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gary Cowan
REPRESENTATIVE:  Mr Kian Christopher Bone
CASE NUMBER:  2100791
HOME AFFAIRS REFERENCE(S):         BCC2020/1458923
MEMBER:Alison Mercer
DATE:29 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 29 April 2024 at 11:56am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Customer Service Manager – subject of an approved nomination – unique or exceptional circumstances – Ministerial Intervention requested – character references – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 January 2021 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 April 2020. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager.
The delegate refused to grant the visa because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by his Australian employer. The delegate found that the nomination of the applicant by his employer, Homedics Australia Pty Ltd, had been rejected by the Department on 6 July 2020. The delegate therefore found that the applicant did not meet the criteria for the grant of a subclass 186 visa in the Temporary Residence Transition stream, and had not made any claims against the other streams.
The Tribunal received a review application from the applicant on 25 January 2021. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Ghada Corban, as his representative and authorised recipient for correspondence. Subsequently, the applicant appointed a migration lawyer, Mr Kian Bone, to these roles.
The applicant appeared before the Tribunal on 5 December 2023 to give evidence and present arguments.
At the hearing, the Tribunal discussed with the applicant its preliminary view that it was likely to affirm the associated nomination refusal decision, also under review by the Tribunal, as it appeared that the nomination could not satisfy one of the mandatory criteria (namely, the requirement that the applicant had been employed as a temporary visa holder by Homedics Australia Pty Ltd for at least 2 years prior to the lodgement of the nomination application). It further indicated that if it did affirm the nomination, it would have to affirm the decision to refuse to grant the applicant a subclass 186 visa, but it would consider referring the applicant’s case for Ministerial intervention consideration pursuant to s.351 of the Act. The applicant indicated that he and his employer had believed that they met all of the relevant criteria to have the nomination and visa approved, and for the applications to fail would be a significant blow to the Australian employer’s business, and to the applicant personally.
On 17 January 2024, the applicant’s agent provided the following letter from Mr Michael Tapp, General Manager of Homedics Australia Pty Ltd, the applicant’s nominating employer:
…
I hope that this letter finds you well. It is with great concern that I find myself having to write this letter appealing to the good graces of your heart to make a discretionary decision in favour of granting Gary Cowan his Permanent Residency given the failure of our representative agency to adhere to the laws associated with his 457 visa and apply for residency 4 days early.
Gary has [sic] and is an integral part of our leadership team here at Homedics Pty Ltd. Not only does he deliver excellence across his areas of expertise, but he delivers a morale and energy within our business that would be irreplaceable. Gary has built incredible relationships both internally and externally with our customer service partners.
Trying to replace Gary’s skill set would be an incredibly difficult task and would have a hugely detrimental affect on our business that is already suffering from the increase in costs associated with importing goods, the increase in mortgage stress and the downturn in retail expenditure.
Not only do I personally look at Gary as simply a wonderful employee but also as a friend and have worked with Gary now for many years. I appeal wholeheartedly to your discretionary power to allow Gary his PR, so that he may stay and continue to deliver his excellence to our Company and continue to be a valued member of Australian society.
Thank you so much for your consideration in this matter.
…
Also provided was a letter from the applicant dated 18 December 2023:
…
I trust this letter finds you well. I am writing to you with utmost respect and humility to bring to your attention the profound impact that the denial of my visa appeal application would have on my life, particularly in the context of my long-standing and meaningful relationship with Mr. Idris Mustafovski.
My name is Gary Cowan, and I have been in a loving and committed relationship with Idris for over 7.5 years. Throughout this time, we have built a life together, our bond is fortified by shared experiences, mutual support, and a genuine desire to create a future together.
The heart of our home consists of two wonderful companions, Louis and Bear, our beloved dogs. These four-legged family members are not just pets; they are an integral part of our lives, and my departure from Australia would undoubtedly disrupt the stability and care that is essential for my partner and pets’ wellbeing.
Beyond the confines of our home, I have invested time and effort into building meaningful friendships and contributed heavily to the success of my workplace, Homedics. I have consistently strived to prove myself as a valuable asset to the organisation, and my departure would not only affect my personal relationships but also the momentum and output of the team that I manage.
Australia has become my home, and the prospect of leaving would not only sever the ties I have worked hard and passionately to invest in, but also undermine the dreams and aspirations I share with Idris. We envision a future together—a future that includes buying a house, raising a family, and contributing positively to the Australian society we hold dear.
I understand the necessity of visa regulations, and I deeply respect the process in place. However, I kindly implore you to consider the circumstances of my case. I am sincerely grateful for your time and consideration of this matter. I believe in the fairness and compassion that Australia is known for, and I trust that, given the opportunity, I can continue to contribute positively to this wonderful country that I have come to love
Thank you for your attention to this important issue. I remain hopeful for a favourable resolution that will allow me to continue building a life with Idris and contribute to the vibrant Australian community.
…
The agent made the following submissions:
…
The case sought to be advanced by the Applicant and their reliance upon policy to the extent that the policy traverses the relevant regulation: I am inclined to agree with the Tribunal that the policy in the current case is ultra vires the Regulation.
It is on that basis that the Tribunal is bound by the Regulation and notwithstanding the concession embedded in the policy the Tribunal is required to apply the relevant law.
This inconsistency may be in fact an “unintended consequence of the statutory scheme” and I would ask that the Tribunal consider referring the matter to the Minister under section 351 of the Act. We refer the member to the two letters provided by the business and the visa applicant, respectfully requesting the member to consider departmental policy regarding the interpretation of a legislative provision for r.5.19(5)(e).
…
On 20 February 2024, the Tribunal wrote to the applicant via his agent to invite him, pursuant to s.359A of the Act, to comment on or respond to information held by the Tribunal that was potentially adverse to the applicant’s case. The Tribunal noted that the particulars of the information were that:
·at the time the applicant made his visa application on 30 April 2020, he was nominated by his employer, Homedics Australia Pty Ltd, as a Customer Service Manager;
·the Department rejected this application on 18 January 2021 because the delegate found that the applicant did not meet cl.186.223 of Schedule 2 to the Migration Regulations as he was not the subject of an approved nomination at the time of the delegate’s decision. The delegate’s findings were made on the basis that the employer’s nomination of the applicant for the occupation of Customer Service Manager had been rejected by the Department on 6 July 2020;
·the applicant applied to the Tribunal on 25 January 2021 for review of the Department’s decision to reject his subclass 186 visa application;
·the Tribunal’s records indicated that Homedics Australia Pty Ltd lodged an application for review of the decision to refuse its nomination with the Tribunal but that the Tribunal affirmed the decision to refuse the nomination on 15 February 2024; and
·accordingly, there was currently no approved nomination of the applicant by Homedics Australia Pty Ltd, and the decision to refuse the nomination was not under review by the Tribunal.
The Tribunal advised that this information was relevant to the review because, subject to the applicant’s comments or response, it indicated that:
·he was not the subject of an approved appointment made by the same employer who nominated him as required by cl.186.223, and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that he met cl.186.223 at the time of decision; and
·there was no evidence that he met the criteria in the Direct Entry or Labour Agreement streams of the subclass 186 visa.
The Tribunal also advised the applicant that since 18 March 2018, major legislative amendments were made to the subclass 186 and 187 visa categories and their associated nominations, such that a nomination by a new employer now would not satisfy cl.186.223 in respect of a subclass 186 visa application for which he was originally nominated by another employer.
The Tribunal requested a response by 5 March 2024. On that date, the Tribunal received the following response from the applicant’s lawyer:
…
As the Tribunal is aware, we were engaged to act for Mr Cowan on 22 February 2024 in this review application. This short submission is written in response to the Tribunal’s Invitation to Comment on or Respond to Information (Invitation) dated 20 February 2024.
We will address two issues in this submission:
1.The Tribunal’s decision on the associated nomination and the Review Applicant’s intention to seek advice on judicial review of this decision; and,
2.The suitability of this decision being referred to the Minister for his personal intervention under s351 of the Migration Act 1958 (Cth) (the Act).
Background
In your Invitation you outline information that may be the reason or part of the reason for affirming the Delegate’s decision to refuse Mr Cowan’s application for an Employer Nomination Scheme (subclass 186) visa (subclass 186 visa). A summary of the particulars of the information are:
·On 6 July 2020, a Delegate of the Minister refused Mr Cowan’s employer, Homedics, nomination of Mr Cowan for a subclass 186 visa on the basis that the Delegate formed the view Mr Cowan’s position was not “genuine”;
·On 18 January 2021, a Delegate of the Minister refused Mr Cowan’s subclass 186 visa application as there was no approved nomination in place;
·On 15 February 2024, the Tribunal affirmed the decision to refuse the nomination application on different grounds to the Delegate; and
·As there is no approved nomination with respect to Mr Cowan’s associated subclass 186 visa application, Mr Cowan cannot satisfy cl186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and this is the reason the Tribunal may affirm the Delegate’s decision in these proceedings.
Our initial view is that the Tribunal is correct in that while there is no approved nomination, the criteria set out in the Regulations cannot be satisfied by Mr Cowan for the grant of the visa. However, as we set out below, our other preliminary view is that there may be an arguable case for jurisdictional error in the decision to affirm the refusal of the nomination.
Judicial review of the nomination decision
We have reviewed your decision to affirm the Delegate’s decision and we are of the opinion that the matter was finely balanced and there may be grounds for judicial review. We have engaged Counsel to provide a prospects advice to this end.
We have reviewed the file for the nomination Review Application and we were disappointed to discover the previous agent conceded the point on the interplay between reg5.19 and relevant migration policy. As the Tribunal would be aware, policy may guide a decision maker in interpreting and applying the legislation on the basis that the policy does not constrain the operation of that legislation. In this matter, the policy was applying a beneficial interpretation to the relevant legislation “to prevent inefficiencies resulting from the 457 visa expiring a few days short of applicants meeting the two-year work requirement, necessitating obtaining a further TSS visa to complete the two years of time worked.”
Perhaps the former Migration Agent should have argued for a beneficial interpretation of reg5.19(5)(e), which deals with the visas that the identified person must hold in the two years prior to the nomination being lodged. The Tribunal would be aware that relevant policy with respect to this subregulation permits time spent on a bridging visa while waiting for the grant of a Subclass 457/482 visa may be counted in the two-year period. In our view, this policy assists the delegate interpret the legislation consistent with the purpose of the “two-year” rule set out in reg5.19(5)(e) as an applicant for a Subclass 457/482 visa should not be disadvantaged by delays in the Department processing visa applications.
The other issue is that we understand many nomination applications have been approved applying this policy and a decision to the contrary may affect the lawfulness of these decisions.
As the Tribunal is aware, the Nomination Review Applicant has 35 days from when the decision was made to file judicial review proceedings. This date is 14 March 2024. We expect to have Counsel’s advice as to prospects by 8 March 2024 and, if it would assist the Tribunal we can keep the Tribunal apprised of these proceedings.
If the Minister were to defend these proceedings, assuming we file, the Minister will need to concede his own policy was ultra vires. If the Minister chose to not defend these proceedings, the nomination decision would be remitted back to the Tribunal for re-consideration. We hope to have the Minister’s answer as to whether he will defend the proceedings within 30 days of filing. We would very much like to avoid the situation where a decision is made in these proceedings to affirm the Delegate’s decision and we are compelled to file judicial review proceedings only for the Minister to chose to not defend those proceedings.
Referral to the Minister under s351 of the Act
In the alternative, we ask that the Tribunal refer Mr Cowan’s matter to the Minister for his personal intervention to substitute a more favourable decision of the Tribunal in these proceedings.
As stated above, we concede that without the successful judicial review of the Tribunal’s decision to affirm the Delegate’s decision to refuse the nomination, the Tribunal must decide to affirm the decision of the Delegate to refuse Mr Cowan’s application for a subclass 186 visa.
That being said, we are of the view that this application should be referred to the Minister for his personal intervention pursuant to s351 of the Act. Relevant Ministerial policy provides:
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers … 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.
In these circumstances, the visa applicant’s employer relied on the following Departmental policy:
Decision-makers are reminded that the Government has provided transitional arrangements for certain cohorts of clients who held or had applied for a subclass 457 visa on 18 April 2017 which was subsequently granted. These arrangements are relevant to the TRT stream only.
Where a nomination is lodged on or after 18 March 2018, and at any time until 18 March 2022, in relation to a client in this cohort, standard nomination requirements in place as of 18 March 2018 must be met with the exception that:
§occupation list requirements will not apply; and
§the minimum period an applicant is required to have been employed in their nominated occupation/position as the holder of a subclass 457 or TSS visa will remain at two years. However, decision makers can accept 23 months as having satisfied this requirement. This is to prevent inefficiencies resulting from the 457 visa expiring a few days short of applicants meeting the two-year work requirement, necessitating obtaining a further TSS visa to complete the two years of time worked (emphasis added).
We submit that the Review Applicant’s employer was entitled to rely upon this policy and it was ultimately to the Review Applicant’s detriment that it did so. In our view, the complexity of the case arises from the fact that the Delegate refused the nomination application based on “genuineness” and the Tribunal found that the position was, in fact, “genuine”. The Tribunal then turned it’s mind to the other requirements for approval of a nomination under reg5.19 and identified the issue under reg5.19(5)(e).
We strongly submit that the Review Applicant’s employer was able to rely on the Department’s policy, in good faith, at the time the nomination was lodged. We submit that there is a reasonable expectation that the Department’s policy is lawful and not ultra vires.
For these reasons, we submit that the Tribunal’s decision with respect to the nomination application was an unintended consequence of the relevant legislation.
In addition to the above, the Review Applicant has been in Australia for over 8 years and has been working with Homedics for 6.5years. The Review Applicant has established his life in Australia. But for the reliance on the Department’s policy, the Review Applicant would be a Permanent Resident.
The Tribunal is aware that Mr Cowan was in a long-term relationship with an Australian citizen at the time of the previous hearing. Sadly, this relationship has broken down and the Mr Cowan’s visa situation was a (small) reason that contributed to this. Mr Cowan continues to “co-parent” his two dogs with his ex-partner.
We have listened to the short hearing the Tribunal has previously conducted for the Review Applicant and we understand the Tribunal is sympathetic to a referral to the Minister under s351 of the Act. Mr Cowan would be pleased to attend a further hearing before the Tribunal to provide any further evidence or information that would aid the Tribunal to make this referral.
…

On 8 March 2024, the lawyer provided the following update:
…
Thank you for your email.
As the Tribunal would be aware, our deadline to file for judicial review is 22 March 2024; however, we are hoping to have Counsel’s advice next week and make a decision as to whether to file proceedings next week. We will keep the Presiding Member updated as to our intentions.
We also thank the Presiding Member’s predisposition to refer the matter to the Minister in any case and we would be pleased to provide any information required to assist the Presiding Member in this regard.
We will be in touch next week.
…
On 3 April 2024, the lawyer provided the following further update:
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I can confirm a judicial review application has been filed in relation to this matter. Please find details below.
Court of Filing: FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (FCFCOA)
File Number: MLG670/2024
File Title: HOMEDICS AUSTRALIA PTY LTD v MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS & ANOR
One of our grounds of review is with respect to the Tribunal’s findings that the policy was ultra vires.
To maintain transparency with Member Mercer, we are awaiting and undertaking the following steps:
·the filing and service of the Response so we are aware who is acting for the Minister;
·we will then write to the Minister to determine whether he will be admitting his policy was, in fact, ultra vires
As the Member is aware, we intend to pursue Ministerial Intervention concurrently with these proceedings and we would be happy to prepare submissions and attend a hearing before Member Mercer if she wished to proceed with the hearing for the visa review application.
…
On 19 April 2024, the lawyer provided a further update, together with documents in support of a referral of the applicant’s matter for Ministerial intervention pursuant to s.351 of the Act. In his update, the lawyer advised that:
…
Judicial Review proceedings
We have received a submitting notice for the Tribunal but have yet to receive a formal response from the Minister. We note that they have 28 days in which to file a Response, with the deadline being Monday, 22 April 2024. So, we will not know whether the Minister intends to defend the matter until the filing and service of the Response.
In our view, this conduct is somewhat strange from the Minister. While not contrary to the Rules, in our experience, the Response is made at the same time the Notices are served.
Referral to the Minister for his Personal Intervention
With respect to any further legal submissions regarding the referral to the Minster, we largely rely upon our submissions of 5 March 2024. We attach further submissions in support of referral to the Minister which raises two further points that favour such a referral.
Further Personal References
Please find attached eight further personal references in support of Mr Cowan
…
The further submissions were as follows:
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Thank you for the opportunity to make final submissions with respect to Mr Cowan’s Review Application.
We wish to make two further and brief submissions as to the suitability of this matter for referral to the Minister for his consideration of his intervention into this matter under s351 of the Act. Both submissions relate to the relevant Ministerial policy, which provides:
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers … 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.
Genuineness
On 18 January 2018, Homedics nominated Mr Cowan in the occupation of a Customer Service manager for a subclass 457 visa. A requirement for the approval of this nomination, at the time the nomination was made, was (reg2.72(10)(f)); the position associated with the nominated occupation is genuine.
The corollary provision for the Employer Nomination Scheme, at the time the ENS nomination was identifying Mr Cowan, was (reg5.19(5)(k)): there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator. These criteria are colloquially known as the genuineness criteria.
While we acknowledge that each application must be assessed on its merits, we submit that, Mr Cowan’s position has been subject to inconsistent decision making as his Subclass 457 nomination had been approved, having satisfied the genuineness criterion, while his ENS nomination had been refused for not satisfying the genuineness criterion. Unless there has been a material change in the position filled by a nominee from the time of approval of the Subclass 457 nomination to the ENS nomination, especially where that nomination was made through the Temporary Resident Transition stream, we submit that significant weight should be placed on the fact that the nominee was performing the nominated role in the intervening period between the two applications. The Department’s decision record makes no mention of Mr Cowan’s performance in the role over during this period.
We acknowledge that this may not elevate the decision to one being infected by legal error; however, we do submit that this factor should lend weight to referral to the Minister under s351 of the Act.
Period of holding the visa
A peculiarity of Migration legislation is that a visa will often be granted for one day longer than the relevant schedule 2 provision provides.
For instance, in Mr Cowan’s matter, his visa was granted for a period of two years, namely 4 May 2018 to 4 May 2020. When considering s36 of the Acts Interpretation Act 1901 (Cth), we submit that the visa period is actually 2 years and one day (4 May 2020 being the first day of the “third year” of the visa). We submit that this interpretation is consistent with the third row of the table found at s36(1) of the Acts Interpretation Act 1901 (Cth); whereby if a period of time is expressed to continue until a specified day then the period of time includes that day.
We submit that this is relevant to the “unintended consequences” of the legislation in that reg5.19(5)(e) provided that Mr Cowan had to have held his subclass 457 visa for at least 2 years before the nomination was made so that he could of [sic] successfully made his nomination on 4 May 2020.
This means that the Department’s policy is inconsistent and confusing when it states:
the minimum period an applicant is required to have been employed in their nominated occupation/position as the holder of a subclass 457 or TSS visa will remain at two years. However, decision makers can accept 23 months as having satisfied this requirement. This is to prevent inefficiencies resulting from the 457 visa expiring a few days short of applicants meeting the two-year work requirement, necessitating obtaining a further TSS visa to complete the two years of time worked (emphasis added).
In our submission, the policy should state that, consistent with the Acts Interpretation Act 1901, reg5.19(5)(e) may be satisfied where a nomination is made on the final day of a Subclass 457 / subclass 482 visa period where the nominee had worked in the nominated position on a full-time bases from the day of visa grant.
We acknowledge that this may be a novel and technical argument; however, we submit that this lends weight in favour of referral to the Minister as it is an unintended consequence or a circumstance not anticipated by the legislation.
This submission is consistent with our earlier submissions that there was detrimental reliance by our clients on the Department’s policy. We submit that it is reasonable for an applicant (whether it be a sponsor or visa applicant) that the Department’s policy be lawful. It is in the public interest that where this detrimental reliance occurs, the Minister should intervene.
Personal and Character References
In addition to the previously provided personal testimonials, we provide eight further character references for Mr Cowan. He is clearly a well liked and valued member of the Australian community and demonstrates that it would be in the public interest for the Minister to intervene.
We would be pleased to provide any further information that would aid the Member in considering a referral to the Minister.
…
Attached were 8 character references for the applicant from friends and work colleagues. The full text of these references is attached to this decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
Nomination of a position
Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.
In addition, this criterion also requires that:
·the nomination has been approved and has not been subsequently withdrawn
·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information
·the position is still available to the applicant, and
·the visa application was made no more than six months after the nomination of the position was approved.
It is not disputed that at the time of the delegate’s decision on 18 January 2021, the applicant was not the subject of an approved nomination by his nominating Australian employer, Homedics Australia Pty Ltd, as the Department had rejected the nomination on 6 July 2020.
Although Homedics Australia Pty Ltd sought review of that decision with the Tribunal, on 15 February 2024, the Tribunal affirmed the Department’s decision to refuse its nomination of the applicant – see AAT/MRD 2011860 of 15 February 2024.
The Tribunal notes that Homedics Australia Pty Ltd has now lodged an application for judicial review of the Tribunal’s decision of 15 February 2024. The outcome of this application is unknown at this time, as is the likely timeframe for a determination by the Courts. Given this, the Tribunal considers it reasonable to not defer its decision for a further period and to proceed to make its decision in this matter.
Accordingly, in the absence of an approved nomination, the Tribunal must find that cl.186.223(2) is not met, and therefore cl.186.223 is not met as a whole.
The applicant has only sought to satisfy the criteria for a subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.
Ministerial intervention request
As noted above, the applicant and his lawyer have indicated that in the event of an unsuccessful review application, they intend to seek Ministerial intervention pursuant to s.351 of the Act.
Under s.351 of the Act, the Minister can substitute for a decision of a review tribunal a decision that is more favourable to a person, if he or she thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to determine, and the Minister’s power to intervene is personal and non-compellable. This means that the Minister does not have a duty to use, or consider using, any of the powers.
There are Departmental guidelines (most recent version 12 April 2024) setting out what kinds of cases might result in Ministerial intervention, and also circumstances in which the Minister considers it would be inappropriate to intervene, as follows:
…
4. Unique or exceptional circumstances
Cases that have one or more unique or exceptional circumstances, such as those
described below, may be referred to me for possible consideration of the use of my
intervention powers:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia
·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case
·the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control
·a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country
·the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.
5. Other relevant information
For all cases referred to me under these guidelines, the Department will provide
information on any other relevant issues, including the following:
·circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations
·circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme
·whether the continued presence of the person in Australia would pose a threat to an individual in Australia or to Australian society or security or may prejudice Australia’s international relations
·whether there are character concerns in relation to the person, particularly concerns related to criminal conduct
·information about a person’s history of compliance with Australian laws, including migration laws, such as:
o any offence or fraud against the migration or citizenship legislation
o any failure to comply with their visa conditions
o any periods as an unlawful non-citizen in the community
·their history of cooperation and engagement with the department to resolve their immigration status, particularly in relation to identity and travel documents
·details of any ongoing court proceedings challenging a decision related to the case and any outcome available before I consider the case
·the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.
CASES THAT SHOULD NOT BE BROUGHT TO MY ATTENTION
6. When the powers are not available
My intervention powers are not available if:
·there is no review decision on the case by a relevant review tribunal or · I have exhausted my power in relation to a review tribunal decision because I have already intervened to grant a visa.
7. Inappropriate to consider
Cases which do not meet these guidelines for referral, and with the types of
circumstances described below, are inappropriate for me to consider. The Department
will finalise these cases without referral to me and advise the person or their authorised
representative in writing:
·the request is made by a person who is not the subject of the request or their authorised representative
·the person is in the community and:
ois an unlawful non-citizen and remains an unlawful non-citizen throughout the course of their Ministerial intervention request; and/or
odoes not cooperate in ensuring that a valid travel document is available (or has not satisfied the Department that they are stateless)
·the person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa
·the person’s visa has been cancelled because they breached their visa conditions
·the person has had a visa refused because they did not comply with the conditions of a previous visa
·the person has been refused a visa or has had a visa cancelled on character grounds
·ASIO has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment (ASA) which remains in effect
·the person could apply for a Partner visa onshore but is subject to an 8503 condition (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided
·the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations)
·the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore
·the person has left Australia
·the person has an ongoing application for a substantive visa (either onshore or offshore) with my Department
·the person has an ongoing application for merits review of a visa decision with a relevant review tribunal
·the person has had a remittal or a set aside decision from a relevant review tribunal or a court
·the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E
·the person has an ongoing Ministerial intervention request under any of the powers covered by these guidelines
·a Notice of intention to remove has been issued to the person, and the Ministerial intervention request has not been initiated by the Department
·the person holds a Bridging visa E with visa condition 8512, which specifies that the person must leave Australia by a specified date
·the request raises claims only in relation to Australia’s non refoulement obligations.
…
There is no evidence before the Tribunal to indicate that the applicant’s case falls within the scenarios set out in the list of cases where the Minister has indicated that they would not intervene. The Tribunal notes that the applicant was previously in a partner relationship with an Australian citizen but he has advised that this relationship has now ceased. It therefore appears that the applicant would not be eligible to apply for a Partner visa.

The applicant and his agent’s submissions in relation to seeking Ministerial intervention can be summarised as follows:
·the application of the relevant legislation leads to particularly unfair or unreasonable results in this case, in that the applicant fell short of the 2 year period of prior employment as a temporary visa holder with his Australian employer required for approval of his employer’s nomination by only 4 days;
·moreover, both the applicant and his Australian employer were unaware that this was a fatal legal issue for the nomination (and therefore also for the visa application) as their agent relied on publicly available information on the Department’s website and Procedures Advice Manual (PAM3) that 23 months of prior employment experience would satisfy the relevant nomination criterion in the Temporary Residence Transition stream;
·this did not accurately reflect the underlying legislation set out in rr.5.19(5)(e) and (6). Nor do the associated concessional periods set out in LIN 22/038 affect the amount of time that the applicant had to have held his subclass 457 visa prior to making the subclass 186 visa application;
·the applicant, his employer and their agent at the time relied on the Departmental policy, which the Tribunal considers was ultra vires;
·the applicant is a valued and experienced employee of his nominating employer, a position he has held for approximately 6.5 years, and had been instrumental in building the customer service reputation and capacity of Homedics Australia Pty Ltd;
·in the nomination decision (AAT/MRD 2011860 of 15 February 2024), the Tribunal found that the applicant genuinely carried out the duties of a Customer Service Manager as set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary and played a vital role in the Australian business. (The Tribunal notes that the position was also found to be genuine when the applicant was granted his subclass 457 visa in 2018);
·the applicant has been in Australia since 2016 as the holder of a subclass 417 working holiday visa, then a subclass 457 visa, followed by bridging visas with work rights following the subclass 186 visa application. He is well settled and has made his life here, having been in a previous long term relationship with an Australian partner, and continuing to own 2 dogs to which he is very attached. He is well regarded by his colleagues and friends and has strong relationships within the Australian community where he lives, as evidenced by the numerous character references provided by him;
·there are legal obstacles to the applicant and his employer lodging a further temporary or permanent employer sponsored/nominated visa application in Australia, most notably because of the fact that s.48 of the Act prevents such applications onshore once a person has been the subject of an earlier onshore visa refusal. While it may be possible to apply offshore, the duration of such an application is unknown and the applicant’s absence would be disruptive for his Australian employer;
·it would be very disruptive emotionally for the applicant if he were now to have to relocate to the United Kingdom, leave his social network, and seek new employment; and
·it would also be very disruptive for his nominating employer, and would have adverse effects on the Australian business if the applicant was not able to continue in his role there.
The Tribunal notes that the purpose of the subclass 186 (Employer Nomination Scheme) visa is for Australian employers to fill vacancies for which there are no, or few, suitable local candidates. In this case, the applicant is still working for his nominating employer in what the Tribunal accepts to be a crucial role for Homedics Australia Pty Ltd, being Customer Serivce Manager (also known as Retail Manager). It was submitted that his skills and professional attitude in this role were rare to find in Australia, as attested to by numerous references from present and former colleagues of the applicant, including his present General Manager.
Given this, the Tribunal accepts that it would be difficult for Homedics Australia Pty Ltd to find a Customer Service Manager locally with the skill, experience and commitment of the applicant, and that losing him would adversely affect this Australian business.
When taken together, and cumulatively, the Tribunal is satisfied that these factors constitute unique and exceptional circumstances which warrant consideration by the Minister pursuant to s.351 of the Act, and it refers the case to the Minister for this purpose.
DECISION
The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.
Alison Mercer

Member
ATTACHMENT A
186.223(1)    The position to which the application relates is the position:
(a)nominated in an application for approval that:
(i)identifies the applicant in relation to the position; and
(ii)is made in relation to a visa in a Temporary Residence Transition stream; and
(c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)    The Minister has approved the nomination.
(3)    The nomination has not subsequently been withdrawn.
(3A)   Either:
(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(4)    The position is still available to the applicant.
(5)    The application for the visa is made no more than 6 months after the Minister approved the nomination.
ATTACHMENT B: Text of character references for the applicant
1.   Mr Tony Knight:
…
Date: 18th April 2024
Character Reference for Gary Cowan's Permanent Australian Citizenship Application
To Whom It May Concern,
I am writing this letter in strong support of a person I am proud to call a friend, Gary Cowan, in his application for Permanent Australian citizenship. I have known Gary for approximately four years, and during this time, I have consistently been impressed by his honesty, integrity, and strong moral character. I originally met Gary professionally and we soon struck up what I call a good old fashioned ‘Aussie friendship’
A Pillar of Support
Gary is a truly dependable and a supportive friend. He is always willing to lend a helping hand, whether it be with a physical task or offering a listening ear during difficult times. His positive attitude and genuine care for others make him a pillar of strength in our circle.
Invaluable Asset to the Community
Beyond his personal qualities, Gary has proven himself to be a valuable asset to our small business community. Recognizing my challenges in marketing, he generously offered his expertise and provided free advice. He even leveraged his network, introducing me to valuable contacts, all without any personal gain. This selflessness demonstrates his commitment to helping others succeed.
Embodies the Australian Spirit
Gary's generosity and willingness to put others first truly embody the spirit of Australia. He exemplifies the values of mateship, fairness, and a helping hand that make this country such a great place to live. I am confident that he will continue to contribute positively to Australian society as a proud citizen. I wholeheartedly recommend Gary Cowan for permanent Australian citizenship. He is a person of good character, strong work ethic, and genuine empathy. His permanent presence would be a valuable addition to the Australian community.
Sincerely,
Tony Knight
Managing Director
This is My Life
2.   Ms Yashinta Hynes:
…
18/04/2024: Statement of appreciation – Yashinta Hynes
My journey with Gary began in Australia, where we crossed paths while working at Homedics here in Melbourne in 2020.
From the moment I met Gary, his genuine kindness and affable nature was evident. He displays warmth effortlessly, making everyone around him feel welcomed and valued. It didn't take long for him to become an integral part of my circle of friends, seamlessly blending into our dynamic group with his infectious laughter and genuine interest in each person he meets.
Gary's generosity knows no bounds. He's quick to extend a helping hand or help without expecting anything in return.
In essence, Gary is more than a friend; he's a shining example of what it means to be a true friend, and I feel incredibly fortunate to have him in my life.
…
3.   Mr Sean Lethlean:
…
Over the past four years, I have had the pleasure of getting to know Gary Cowan through his friendship with my partner, Yashinta where they both currently work for Homedics.
Gary has established a life in Australia, living in Melbourne with two Dachshund’s and surrounded by a supportive network of friends, all which I’ve had the pleasure of being apart of.
Having Gary part of my friendship group has been great, we've celebrated significant milestones together including his 30th Birthday and Gary will be attending our wedding in November. He is always willing to lend a helping hand to anyone in need and it’s been a privilege to have met him with the chance to create many more memories.
…
4.   Ms Shelli McCallum:
…
17th April 2024
Letter of Recommendation for Gary Cowan's Permanent Australian Citizenship Application
Dear Honourable Members of the Government Tribunal,
I am writing to express my absolute unwavering support for Gary Cowan's application for Permanent Australian citizenship. I have had the privilege of knowing Gary for approximately four years, during which time I have come to deeply admire his character, integrity, and unwavering commitment to helping others.
Character and Integrity: Since I have known Gary, he has consistently demonstrated honesty, ethics, and integrity in all his actions and interactions, which sadly I am seeing less of in today’s society, so I certainly stand up and take notice when it is so apparent in a person such as Gary.
Selfless Assistance: Gary goes above and beyond to support those around him, I personally suffer from M.S. and when Gary learned of my ailment, he moved mountains to be of assistance to me and my husband, his attitude to life is inspiring and this has certainly helped me mentally which at times has been challenging. Gary is just such a selfless person who always offers help without expectation of any personal gain.
In conclusion, I would just like to state that Gary Cowan is an outstanding individual whose contributions to our community and myself personally have been invaluable. I wholeheartedly endorse his application for Australian citizenship and am confident that he will continue to enrich the fabric of our society for years to come.
Please don’t hesitate to contact me if I can be of any further assistance in Gary’s application.
…
5.   Ms Cathryn Conlon:
…
18 April 2024
To Whom It May Concern
I met Gary Cowan through our workplace, from the moment I met Gary we formed an instant friendship.
Gary has an extremely high work ethic and is someone who always contributes above and beyond. He is a great leader, motivator and provides a positive atmosphere for all team members, often providing guidance and support to assist team members reach their potential. He is dedicated, loyal and strives to deliver positive outcomes for the company.
Gary has a great love for our country and is proud to call Australia his home. Gary has immersed himself in our culture, way of life and contributes to the community. Gary takes pride in his health and fitness, has formed a flourishing career, an extensive circle of friends that has become his family and is the proud Dadda to his dogs, Loui, and Bear.
If asked to describe Gary, the words loyal, caring, and sincere come front of mind. He cares deeply for others and is always ready to lend a helping hand, never asking for anything in return. Since coming to Australia Gary has formed his base, his family, his career, and we are all the richer for knowing him.
Yours faithfully
Cathryn Conlon
…
6.   Mr James Nicklin:
…
Re: Gary Cowan Personal Reference
To Whom this may concern,
I have had the pleasure of knowing Cary for over 8 years in both a Professional and Personnel capacity. I initially met Gary whilst I was employed as CFO for Homedics Australia and interviewed him for a role. He was of course hired and over the next six years we worked closely together getting to know each other (and our families) very well. When I left this role, our friendship continued. I am proud to call Gary a friend, as he demonstrates the values and beliefs that I hold close to me of kindness, compassion, loyalty and honesty.
It has been a pleasure to see Gary grow whilst he has been in Australia and immerse himself into settling into the Australian way of life. This has been strengthened by the addition of Gary’s 2 dogs, which are his family. Gary has consistently been in employment and has shown he is financially stable and reliable in meeting all rental commitments, payment of tax, medical insurance and car lease commitments for example. As a member of our community Gary has a clean criminal history and stays up to date with immunisations to protect the people around him and to keep the place he calls home safe.
I have witnessed first hand Gary’s unwavering support to local business where he has unselfishly invested his time, knowledge and wisdom helping people achieve their business goals with zero expectation of anything in return. Nationally his work at Homedics has had a significant impact on the economy and the impact he has had on people’s lives is immeasurable. There have been a number of corporate social responsibility activities Gary has proactively pursued from ‘one tree planted’ to proactively assisting customers impacted by Fire, Floods and of course Covid.
Australia is Gary’s home. He is an Australian (with a Scottish accent), he is a role model and an example of what immigration should look like. There is nobody like Gary, we should consider ourselves lucky he has chosen to call Australia home. We are in need of more Garys in this country and I employ you to recognise that should his visa be rejected, the loss would be devastating to the people that call him mate.
One final point to finish on.
Gary has never asked anyone for anything, he has only ever given. If anyone deserves to remain in this place he calls home it is him. I’m sure you will read some great personnel references for him – they are all true. I appreciate there are always complexities, but if anyone is deserving of discretion, luck, a break, or whatever you want to call it, it’s Gary.
…
7.   Ms Kim Baldwin:
…
To Whom It May Concern:
I am writing to express my full support for Gary Cowan, someone I have had the pleasure of working with over the past eighteen months. As a consultant to Homedics where Gary works, I have been both a colleague and a mentor to Gary and have had the opportunity to witness firsthand his exceptional dedication to his work, his caring and supportive nature and his fun-loving and positive attitude.
In the time I have known Gary he has demonstrated a commitment not only to his work but to his own self-improvement. He brings a wonderful energy and a genuine desire to positively contribute to any challenge faced by the business. Beyond his professional capabilities, Gary is caring and supportive, always willing to lend a hand, cheer someone up or lend an ear to help someone else work through their issues, personal or professional.
I would wholeheartedly recommend Gary for any visa application. His commitment, positivity and empathy for others make him an exemplary candidate. Should you need any further information please don’t hesitate to contact me.
Kim Baldwin
Co-Founder, Sparq Group
…
8.   Mr Sam Azouji:
…
To Whom It May Concern,
I am writing to support the visa application of my friend, Gary Cowan. Over the past three years, I have known Gary on a personal level, and have consistently observed qualities that I believe make him an exceptional addition to our community here in Australia.
Gary has shown remarkable determination and reliability in all aspects of his life. He is always eager to lend a helping hand and goes above and beyond to ensure those around him are thriving. His commitment to personal and communal growth is evident through his active involvement in community activities and his unwavering support to friends and acquaintances.
His friendly nature and personability allow him to build and maintain strong relationships with a diverse range of individuals, enriching the cultural tapestry of our community. His happiness and positive outlook on life inspire those fortunate enough to know him.
It is without hesitation that I recommend Gary for continued residence in Australia. His contributions are not only valuable in terms of personal interactions but are integral to the vitality and spirit of our community.
…

[2024] AATA 1619

29 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

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