Curry (Migration)
[2021] AATA 104
•19 January 2021
Curry (Migration) [2021] AATA 104 (19 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Lewis James Curry
Ms Kanrawee TanabordeejindawatCASE NUMBER: 1814527
HOME AFFAIRS REFERENCE(S): BCC2017/2374569
MEMBER:Karen McNamara
DATE:19 January 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Statement made on 19 January 2021 at 6:37pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – related position nomination refused – acquisition of nominating company by another company and applicant’s continuing work – review rights do not transfer to new owner/employer – refusal of position nomination affirmed – long-term, skilled and valued employee and genuine need for position – credible evidence – member of family unit – integration into community – unfair or unreasonable results of legislation – referred for ministerial consideration – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 65, 348, 351, 359A
Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cls 186.223(2), 186.311STATEMENT 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 7 May 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 4 July 2017. 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 (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 first named applicant Mr Lewis James Curry (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Vehicle Painter (ANZSCO 324311). The applicant applied for a visa on the basis of a nomination made by the applicant’s employer at the time of application, being Smashcare Holdings Pty Ltd.
The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations which required Mr Lewis James Curry to be the subject of an approved nomination. The delegate found that the nomination lodged by Smashcare Holdings Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration and Border Protection on 24 March 2018.
Accordingly, as the nomination application had been refused, the delegate found that cl. 186.223(2) was not met and therefore the applicant did not meet cl.186.223 of Schedule 2 to the Regulations.
The delegate also found that the second named applicant Ms Kanrawee Tanabordeejindawat could not be granted a Subclass 186 visa, as she did not meet the secondary visa criterion (cl.186.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.
The applicants applied to the Tribunal on 18 May 2018 for review of the delegate’s decision.
On 18 December 2020, the applicants represented by Mr Lewis James Curry (referred to below as the applicant) appeared before the Tribunal via telephone to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jodie MacCombie and Mr Gregory Hoskins on behalf of AMA Group Solutions Pty Ltd (the applicant’s current employer).
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent Ms Qing qing Wang assisted by Mr Arun Garg. The representatives attended the Tribunal 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 applicant meets the requirements of cl.186.223.
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 r.1.13A and r.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.
Nominator’s proceedings
The nominator applied to the Tribunal on 11 April 2018 (AAT case file 1810179) for review of the delegate’s decision. Subsequent submissions provided to the Tribunal showed that in 2019, AMA Group Solutions Pty Ltd acquired the assets and former employees (including the applicant) of Smashcare Holdings Pty Ltd. The applicant has continued to work for the acquiring entity since July 2019.
On 16 December 2020, the Migration Agent provided a submission via email stating;
‘1. the “association” between Smashcare Holdings and AMA through sale
agreement/purchase of Smashcare business (assets and employees) and
responsibility of employees including continuity of service and their entitlements
being maintained through that sale process;
2. Employers are permitted to demonstrate that the previous entity and the new
entity are “associated” entities under s50AAA (1) (4) of the Corporations Act; and
3. Ministerial referral: The Tribunal may consider the circumstances of the
applicant’s case to be unusual, in the sense that it is not disputed that he has
been continuously working in his nominated role with his “employer”. Upon sale
agreement/purchase of Smashcare business by AMA, nothing changed for Lewis
Curry. “Tribunal” may distinguish between “Employer Nomination” vs “Business
Nomination” in this merit review. Lewis Curry remain employee and continue to
work for his “employer”. Sale agreement/purchase of Smashcare business by AMA are corporate decisions beyond his control.’[1]
[1] Transcribed as prepared and submitted by the Representative
At the hearing of 18 December 2020, the nominator was not represented and did not appear before the Tribunal to provide evidence. The Tribunal advised those present that based on the information currently before it, that the Tribunal had formed the view that SmashCare Holdings Pty Ltd is the nominator and the review applicant for the purpose of the nomination review and that SmashCare Holdings Pty Ltd must satisfy the criteria in regulation 5.19(3) to be approved the nomination in the Temporary Residence Transition Stream.
There is no provision in the Act to allow review rights to be transferred from one nominating entity to another. As such, AMA Group Solutions Pty Ltd cannot step into the shoes of Smash Care Holdings Pty Ltd and carry on the review as the review applicant. For this reason the Tribunal formed the view that as the nomination application for review had not been withdrawn by SmashCare Holdings Pty Ltd, the Tribunal continued to have jurisdiction, and under s.348 of the Act, must review the decision and exercise its powers to either, affirm the refusal decision or set it aside and substitute a new decision that the nomination is approved.
On the 21 December 2020, the Tribunal affirmed the decision refusing the approval of the nomination made by Smashcare Holdings Pty Ltd in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl.186.223(2) and as such cl.186.223 is not met.
On 23 December 2020, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Smashcare Holdings Pty Ltd, which the Tribunal explained was relevant to the applicant meeting cl.186.223(2) which requires the nomination to be approved. As the nomination has been refused, cl.186.223(2) is not met.
The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 6 January 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.
On the 4 January 2021, the applicant’s authorised representative by way of email, advised the Tribunal that the applicants accept that their review application may not succeed and confirmed as discussed during the hearing that the matter be referred to the Minister under s351 of the Act.
On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl 186.223(2) of Schedule 2 to the Regulations.
As the first named applicant does not meet an essential criterion for the grant of a subclass 186 visa, cl.186.223 of Schedule 2 to the Regulations is not met.
There is no evidence before the Tribunal to indicate that the second named applicant meets the primary requirements for grant of the visa.
In relation to the second named applicant Ms Kanrawee Tanabordeejindawat, the Tribunal notes that cl.186.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.
As the applicant has not met the requirements for the grant of a Subclass 186 visa, and is not the holder of a Subclass 186 visa, it follows that the secondary applicant Ms Kanrawee Tanabordeejindawat as a member of Mr Lewis James Curry’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.186.311 of Schedule 2 to the Regulations.
The applicants have 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.
Request for referral to the Minister
The Tribunal has no discretion to waive the specific requirements in cl. 186.223 which prescribe the only ways in which that clause can be met. Nor (as discussed with the applicant at the hearing), does the Tribunal have the power to waive or overlook this requirement or to substitute its own opinion in relation to the merits of this case.
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.
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 may be unique or exceptional in this case include, relevantly:
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.
Is this an appropriate case to refer to the Minister?
In this case, since lodging his review application, the assets and employees of the applicant's sponsoring and nominating employer were acquired by a different entity (AMA Group Solutions Pty Ltd). In 2019, AMA Group Solutions Pty Ltd, a public listed company, acquired the assets and employees of SmashCare Holdings Pty Ltd. Despite the acquisition, the applicant has maintained the same position since January 2014 as a Vehicle Painter (ANZSCO 324311) and his duties and working conditions remain as they did prior to the acquisition. The applicant has continued to report to the same management structure and the company has retained the same business location and operations. The Tribunal notes evidence before it that AMA Group Solutions Pty Ltd is an approved business sponsor and holds a current Labour Agreement with the Department. In the 2019/20 financial year, the company recorded turnover of $402 million, with payroll cost for the same period of $136 million.
While the Tribunal is mindful of the fact that it did not have the opportunity to hear from the applicant's nominator, it considered the applicant and witnesses to be sincere and credible, and whose oral and documentary evidence indicates they believed that in their capacity as the applicant’s current employer, they were able to continue to nominate the applicant for his subclass 186 visa.
The Tribunal notes that the applicant and his partner are well integrated into the Australian community. The applicant has worked continually in the position of vehicle painter since his arrival to Australia in January 2014. The applicant, according to Ms Jodie MacCombie and Mr Gregory Hoskins (who provided evidence at the hearing on behalf of AMA Group Solutions Pty Ltd), has been integral to the smash repair business due to his highly sought technical skills using water-based paints. The Tribunal was told that the Australian smash repair industry is experiencing a high shortage of painters proficient in the use of water-based paints. The applicant is a highly valued and skilled employee who contributes to training the company’s Australian employee’s in the technique and use of water-based paints on motor vehicles. The company has attempted to recruit locally without success and will struggle to replace the applicant, should the applicant not be granted a visa.
The Tribunal acknowledges that the legislation does not provide for review rights to be transferred from one nominating entity to another despite the willingness of AMA Solutions Pty Ltd to support the applicant in his review application and continue to employ the applicant. The Tribunal further acknowledges that the legislation requires inter alia the nominator is actively and lawfully operating a business in Australia and that there is a genuine need for the nominator to employ the applicant to work in the position under the nominator’s direct control. However, the Tribunal considers the circumstances of the applicant’s case to be unusual, in the sense that at the time the applicant lodged his visa application and subsequently his review application, the nominator was actively and lawfully operating a business and the applicant was employed under the nominator’s direct control. The applicant worked continuously in his nominated role with the nominating employer from January 2014 until the acquisition of the nominator’s assets and employees by AMA Group Solutions Pty Ltd in July 2019. The applicant has continued to work with the acquiring entity since July 2019 and for all intents and purposes the applicant’s working environment and conditions have not changed.
Having regard to the circumstances of the applicant as outlined above, the Tribunal considers that the application of the relevant legislation leads to unfair or unreasonable results in the applicants’ case. Accordingly, the Tribunal considers it appropriate to refer this matter for Ministerial consideration pursuant to s.351 of the Act.
The Tribunal therefore considers it appropriate to request that this case be brought to the attention of the Minister in order for him to exercise his discretionary intervention powers under s.351 of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Karen McNamara
MemberATTACHMENT A
186.223(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
(b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Remedies
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