Guglielmi (Migration)

[2020] AATA 5642

Guglielmi (Migration) [2020] AATA 5642 (24 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Camilla Guglielmi
Mr Simone Tosto
Master Vieri Tosto

CASE NUMBER:  1808435

HOME AFFAIRS REFERENCE(S):         BCC2017/3934165

MEMBER:Wan Shum

DATE:24 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 24 November 2020 at 9:24am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – position of Public Relations Professional – no approved nomination – employment with the sponsoring employer ceased – request for Ministerial Intervention – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 March 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 186 visas on 25 October 2017.

3. 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.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Public Relations Professional. The related nomination was made by Sailing Ingredients Pty Ltd (the nominator) on 18 October 2017.

5. The nomination was refused on 8 February 2018.

6. As a consequence, the delegate refused to grant the visa finding that the applicant did not meet cl.186.233 of Schedule 2 to the Regulations.

7. Both the nominator and the applicants sought review of the refusals and were represented in relation to the review by the same registered migration agent.

8. The Tribunal wrote to the nominator on 29 July 2020 requesting updated and current information in respect of the review of the nomination. The Tribunal received an email from the representative advising that the employment relationship between the nominator and the applicant had come to an end. The representative later informed the Tribunal that he would no longer be acting for the nominator or the applicants for reasons unrelated to the issues in these matters and a new representative was appointed shortly thereafter. The nominator subsequently withdrew from its application for review. The applicants were then invited to appear before the Tribunal by phone on 6 November 2020. It was confirmed that the applicants understood and accepted that they cannot satisfy several of the criteria which must be met for the grant of Employer Nomination visas because the applicant’s employment with her sponsoring employer has ceased. The Tribunal was informed that the applicants were seeking a referral to the Minister to substitute a more favourable decision under s.351 of the Act.

9. A hearing was held with the applicant by phone on 6 November 2020. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue before the delegate in this case was that the nomination had not been approved. 

11. The applicant confirmed that she is no longer employed by the nominator and acknowledges that the nominator withdrew its application for review of the decision not to approve the nomination. As submitted by the representative, there is no dispute that the applicant does not meet the requirements of cl.186.233(3) at the time of the Tribunal’s decision.

12. Instead, the applicant is seeking to have her matter referred to the Minister. She has provided a statutory declaration outlining the circumstances which led to her leaving her employment with the nominator. The applicant explained that she had commenced employment with her former employer in September 2016 and initially was being sponsored under the 457 visa program but that, after the introduction of caveats in around April 2017, the Department contacted her former employer and indicated that it did not appear that the caveats would be met specifically in relation to the minimum turnover requirement. The Department advised that the application could be withdrawn, and they lodged a new application for the nomination of the applicant under the ENS for the occupation of Public Relations Professional, which was directly relevant to her previous experience in Italy.

13. The applicant’s evidence was that she had a good working relationship with the owner/director until mid-2019, shortly after a new Restaurant Manager was engaged. The new Manager had suggested the adoption of a different booking platform which meant that it was possible to override the orders from individual tables by applying a discount. When doing so, the payment for the meal could be taken as a cash sale and pocketed without declaring the income. She did not want to be involved in this illegal activity, and after making this clear, was then subjected to bullying and harassment including a pay cut in around September 2019. The applicant reported the scheme of income concealment to the Australian Taxation Office and the hostile workplace practices to SafeWork NSW, which it was acknowledged at the hearing was not the correct agency. It does not appear that the incidents have been investigated by the relevant agencies to date. She explained that she was forced to resign from the position following these incidents and was now working full-time as a retail assistant at Max Mara, an Italian fashion store.

14. The representative submitted that the workplace harassment ultimately led to her resignation and, consequently, the opportunity to seek to qualify for an Employer Nomination visa. It was submitted that there are strong compassionate circumstances in this case as the applicants have strong ties to Australia, having lived here for nearly five years, they were married here, and raised their son here through most of his early childhood. In addition, it was submitted that they would face obvious impediments if required to return to Italy, especially in light of the economic disruptions that have been caused by the COVID-19 pandemic such that they would “literally have to start their lives over again”.

15. Furthermore, it was submitted that the current legislative scheme does not recognise or make provision for circumstances where the applicant has been subject to a hostile workplace by the sponsoring employer, and those unfair working conditions have caused the employment relationship to cease.

16. The Tribunal considered whether this is an appropriate case to refer to the Minister for his intervention.

17. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision that 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 a matter should be referred to the Minister for his consideration.  The power under s.351 of the Act may only be exercised by the Minister personally.  Furthermore, the power is non-compellable, in the sense that the Minister has no duty to consider whether to exercise the power when requested to do so by an applicant, or another person, or in any other circumstances.

18. The Tribunal has considered the circumstances, and while it does not condone workplace harassment or unfair working practices, it has decided not to refer the matter. It notes that the applicants are now in a position to approach the Minister himself to request that he intervene in their case.

19. In the circumstances, as the nomination has not been approved, cl.186.233(3) is not met. Therefore, cl.186.233 is not satisfied.

20. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

21. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Wan Shum
    Member