Koehler (Migration)

[2023] AATA 2852

Koehler (Migration) [2023] AATA 2852 (3 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Koehler

REPRESENTATIVE:  Ms Catherine Farrell (MARN: 1460539)

CASE NUMBER:  2107792

HOME AFFAIRS REFERENCE(S):          BCC2021/1211460

MEMBER:Jason Pennell

DATE:3 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant to the applicant a subclass 808 Confirmatory (Residence) (class AK) visa.

Statement made on 3 August 2023 at 9.30am

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) – Subclass 808 visa – applicant does not meet the time of application criteria for a subclass 808 visa – former employer did not attain the correct sponsorship for the applicant’s visa –applicant was not the holder of a prescribed visa– applicant was the holder of a Bridging Visa E at the time of application – unfair and unreasonable outcome for the applicant – specialised skills as a set builder –  unique and exceptional circumstances – referral for ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulations 1994, Schedule 2, cls 808.211, 808.212, 808.213

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 9 June 2021 to refuse to grant the visa applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 25 May 2021. The applicant’s representative acknowledged at the outset that the applicant does not meet the criteria for the grant of the visa. The purpose of the application is to seek review of the refusal decision by the Tribunal, and then to request intervention by the Minister pursuant to s 351 of the Act.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl 808.21 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The applicant appeared before the Tribunal on 22 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ashley Fitzgerald and Mr Joseph Hackett.

4. The applicant was represented in relation to the review by his lawyer, Ms Catherine Farrell of Clothier Anderson Immigration Lawyers. Mr Keefe Chan, a colleague of Ms Farrell, attended the hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

SUPPORTING EVIDENCE

Applicant’s identity and migration history

1. The applicant is a 34-year-old citizen of Germany. He submitted a copy of his German passport to the Department.

2. The applicant was born in Suhl, Thuringia, Germany on 24 January 1989. He completed secondary school in Germany in 2006. After he finished school, the applicant took up an apprenticeship in sales. He obtained an Ordinance on Aptitude of Instructors on 21 January 2009 and became qualified as a Professional of Trade and Commerce on 20 June 2011. Before arriving in Australia, the applicant worked as a supervisor at a commercial retail business.

3. The applicant was granted a Working Holiday (subclass 417) visa on 27 October 2014. He arrived in Australia on 12 March 2015. This visa was due to cease on 12 March 2016. On 2 March 2016 the applicant was granted a Bridging A (subclass 010) visa, which ceased on 2 April 2016, the day that the applicant was granted a second Working Holiday (subclass 417) visa. The applicant held this visa until 12 March 2017. He departed Australia on that day, and on 29 May 2017, he was granted an Electronic Travel Authority (subclass 601) visa, valid until 29 May 2018. The applicant returned to Australia on 30 May 2017, then departed on 14 June 2017. The applicant remained offshore for approximately two years.[1]

   [1] discussed in greater detail below.

4. The applicant returned to Australia on 6 June 2019 as the holder of an eVisitor (subclass 651) visa, before departing on 6 September 2019 and returning on 17 September 2019 holding a visa of that same subclass. On 6 January 2020 the applicant was granted a Temporary Activity (subclass 408) visa, which was due to cease on 11 April 2020. He returned to Australia on 11 January 2020. On 27 March 2020 he was granted a Bridging A (subclass 010) visa in association with his application for a further Temporary Activity (subclass 408) visa. In December 2020 this application was ultimately deemed invalid because of problems with the employer’s sponsorship. Accordingly, the applicant’s Bridging A (subclass 010) visa ceased on 13 January 2021. The applicant applied for a Bridging (subclass 050) visa, which he was granted on 5 February 2021. He has held successive Bridging E (subclass 050) visas since that time.

5. The applicant and his representative gave further evidence about his immigration, employment, and study history at the hearing, which is set out below.

6. The applicant provided the following documents in support of his application to the Department

   ·Completed and signed Form 852 - Application for a Confirmatory (Residence) (subclass 808) visa.

   ·Completed and signed Form 956 - Appointment of Agent.

   ·Copy of the applicant’s German passport.

   ·Letter from Benjamin Corless, Director of All Creative Australia Pty Ltd, regarding potential jobs for 2021.

   ·Crew Deal Memo - demonstrating the applicant's role as a set builder.

   ·Letter from Benjamin Corless, Director of All Creative Australia Pty Ltd dated 11 January 2021.

   ·Letter from Jay Radford, National Imports Officer dated 14 January 2021.

   ·Letter from Jay Radford, National Imports Officer dated 25 March 2021.

   ·Applicant’s resume.

   ·Letter from Benjamin Corless, Construction Manager at Blacklight dated 30 January 2021, confirming the applicant’s employment as a set builder.

   ·Letter from Peter Tzevakos from Stellar Built Pty Ltd dated 5 November 2020, confirming the applicant's employment.

   ·Reference from Tim Blaikie, Managing Director of Show Works Creative Solutions, dated 29 June 2020.

   ·Letter from Warren Kerr at Kitchen Logistics dated 26 July 2018, confirming the applicant’s employment as a carpenter.

   ·Letter from Hamish Craig, General Manager at Lindesay Construction dated 13 March 2018, confirming the applicant's employment as a carpenter.

   ·Letter from Phillip Ripa, Director of Eurobuild Construction Pty Ltd confirming the applicant’s employment as a carpenter.

   ·Letter from Ed Mulholland, Construction Department Supervisor at Hungry City

   ·Limited dated 31 July 2017, confirming the applicant’s employment as a carpenter/set builder.

   ·Letter of recommendation from Greg Hajdu, Construction Supervisor at Maelstorm dated 15 February 2017, confirming the applicant’s employment as a set builder.

   ·Letter of recommendation from John Ram, Construction Supervisor at Asgard Productions III Pty Ltd dated 20 October 2016, confirming the applicant’s employment as a set builder.

   ·Letter from Lisa Carew, Office Manager at Landing Resort dated 20 March 2018, confirming the applicant’s employment doing general construction work.

   ·Reference from Zimmererei & Holzbau Schwarm dated 17 January 2015, confirming the applicant’s employment as a carpenter.

   ·Statement of Attainment - Work safely in the construction industry, issued on 3 July 2015.

   ·Level 1 Rope Access Technician certificate issued 9 October 2020.

   ·Statement of Attainment - Licence to operate a boom type elevating work platform, issued on 12 February 2021.

   ·Statement of Attainment - Licence to operate a forklift truck, issued on 10 February 2021.

   ·Tool list.

   ·Previous Bridging visa E grant notifications.

7. The applicant provided the following documents in support of his application for review at the Tribunal:

   ·Copy of the applicant’s signed statutory declaration dated 21 June 2023.

   ·The applicant’s Curriculum Vitae.

   ·Letter of support by AllCreative Australia Pty Ltd dated 11 January 2021.

   ·Letter of support by Timothy Blaikie, Director of Show Works Creative Solutions dated 10 December 2019.

   ·Letter of support by Trades Australasia, dated 18 June 2023.

   ·Letter of support by Eli Golub from Motion Picture Studio Grip dated 14 June 2023.

   ·Letter of support by Melbourne Special Effects dated 13 June 2023.

   ·Letter from Media Entertainment and Arts Alliance (MEAA) confirming that they will not object to the applicant working in the entertainment industry dated 12 December 2019.

   ·Letter from Media Entertainment and Arts Alliance (MEAA) confirming that they will not object to the applicant on a number of advertising and display campaigns dated 25 March 2021.

   ·ATO Notices of Assessment for the applicant for financial year ending on 30 June 2020, 30 June 2021 and 30 June 2022.

   ·Evidence of employment interest from Shantaram dated March 2021.

   ·The applicant’s High Risk Work Licence issued on 25 March 2021 and expires on 25 March 2026.

   ·The applicant’s IRATA International Level 1 Rope Access Technician Certificate and Card issued on 9 October 2020 and expires on 8 October 2023.

   ·National Skills Commission Skills Priority List Findings for Construction Trades Workers occupations assessed for 2021.

   ·Deloitte Access Economic report on the economic and cultural value of Australia’s screen sector.

   ·Australian Broadcasting Agency, Gold Coast article titled ‘Film industry cries out for creative, flexible, behind-the-scenes talent’ dated 24 September 2021.

   ·Global Australia’s article titled “Inside Film Magazine article: Film Industry Skilled Migration” dated 14 June 2023.

   ·Screen Australia’s media release announcing 1 million to boost screen industry skills around country dated 22 March 2023.

   ·Infrastructure Magazine’s article titled ‘Skilled construction worker shortage to reach critical levels’ dated 19 August 2022.

   ·National Skills Commission Skills Priority List Findings for 2022.

   ·Letter of support by Aleksandra Stokic date 15 June 2023.

   ·Letter of support by Ashley Fitzgerald dated 14 June 2023.

   ·Letter of support by Joseph Hackett dated 14 June 2023.

   ·Letter of support by Sydnie van Hoffen dated 14 June 2023.

   ·The applicant’s residential tenancy agreement signed on 20 June 2023.

   ·Applicant’s Gear and Kit Audit dated March 2023.

   ·List of the applicant’s tools which require relocation dated 8 June 2023.

   ·Letter from Crown Worldwide (Australia) Pty Ltd providing a quote for relocation of tools dated 8 June 2023.

   ·Crown Relocations tax invoice dated 8 January 2020.

   ·Crown Relocations tax invoice dated 16 January 2020.

   ·Crown Relocations tax invoice dated 7 February 2020.

8. The applicant’s statement reads as follows:

   I make this declaration in support of my application for review at the Administrative Appeals Tribunal as well as my request for the intervention of the Minister under s 351 of the Migration Act 1958 (Cth).

   Personal history

   I was born on 24 January 1989 in Suh!. Germany. I am a German citizen.

   In terms of studies, I obtained an Ordinance on Aptitude of Instructors on 21 January 2009. I was also recognised as a Professional of Trade and Commerce (CCI) on 20 June 2011.

   Prior to coming to Australia, I had experience working as a supervisor at a commercial retail business.

   Immigration history

   In order to come to Australia, I applied for a Working Holiday Visa on 27 October 2014. I first arrived in Australia in 2015 holding this visa. During this time, I lived and worked in multiple states, including Western Australia and New South Wales.

   I was granted a Working Holiday (Temporary) (class TZ) Working Holiday (subclass 417) visa on 2 April 2016. Throughout this period, I lived and worked in Sydney and the Gold Coast, where I worked as a set builder on the set of "Alien: Covenant" by Ridley Scott and "Thor: Ragnarok" from Marvel Studios. I also worked in set construction on the set of "Pacific Rim 2: Maelstrom".

   Between 2017 and 2019 I moved to New Zealand, where I continued working in various roles, including as a Set Builder and Carpenter /Builder.

   I returned to Australia after my application for a Temporary Activity (subclass 408) visa was granted on 12 January 2020 for a period of three months, to April 2020. Between

   January 2020 and July 2020, I worked as a Set Builder and Carpenter with Show Works

   Creative Solutions, Victoria ('Show Works').

   On 26 March 2020, I applied for a Temporary Activity (subclass 408) visa in the Entertainment stream, as the subclass 408 visa I was holding at the time was due to expire on 10 April 2020. I held a Bridging A visa while the application was being processed by the Department.

   After I finished the contract at the time with Show Works in July 2020, I started working with a number of other companies in order to continue earning an income and to make contacts. In November 2020 I became working on the movie set of "Blacklight". I continued working on the movie set until January 2021.

   On 9 December 2020, I received a "Notification of invalid application for a Temporary Activity (subclass 408) visa", stating that my visa application "did not specify a person who has agreed to be the applicant's sponsor, who is also temporary activities sponsor or who has applied for approval as a temporary activities sponsor".

   The reason for this is because due to the sudden onset of the COVID-19 pandemic, the amount of work for Show Works had dramatically decreased, and the company was no longer able to act as the Temporary Activities Sponsor for my subclass 408 visa. My understanding is that as the company no longer had the financial capability to employ me during the period of the subclass 408 visa, the company did not proceed with the application for Show Works to be approved as a Temporary Activities Sponsor. Apparently, the Department had reached out to Show Works regarding the fact that the company had not been approved as a Temporary Activities Sponsor, but the company did not respond to the request for information.

   At the time, I also did not understand the distinction between a Temporary Activities Sponsorship and a Standard Business Sponsorship. I was under the impression that Show Works was eligible to sponsor me for a subclass 408 visa due to the fact that they had been approved as a Standard Business Sponsor and the sponsorship was still in force until 4 September 2023. I attached a copy of the sponsorship approval with the application for the subclass 408 visa.

   After I was notified that the visa application was invalid, I was unable to lodge another application for a Temporary Activity (subclass 408) visa as it had been more than 28 days since I held my last substantive visa. My Bridging A visa expired on 13 January 2021. After my Bridging A visa expired, I did not possess a valid Australian visa as I did not know what my visa options were. This was a very stressful period ofmy life, having lost both the right to work in Australia, as well as my future visa pathway being erased, especially in the context of the COVID lockdowns that had happened in Victoria disrupting life and the economy in general.

   I applied for and was granted a Bridging E (subclass 050) visa on 5 February 2021 on the basis that I was making arrangements to depart Australia. The visa cease date was 5 April 2021. I applied for a Bridging E visa as I did not have any other visa options open to me at that point. I was not eligible to apply for another Temporary Activity (subclass 408) even though there were employers that were willing and able to sponsor me. l also could not leave Australia as I had many thousands of dollars' worth of tools in Australia that I could not just abandon.

   I was granted another Bridging E (subclass 050) visa on 14 April 2021 on the basis that I was making arrangements to depart Australia. The visa cease date was 30 June 2021.

   I lodged an application for a Confirmatory (subclass 808) visa on 25 May 2021 with the intention of seeking the intervention of the Minister. The application for a Confirmatory (subclass 808) visa was refused on 9 June 2021.

   I was granted a Bridging E (subclass 050) visa on 9 June 2021 on the basis that I had made a valid application for a substantive visa and that application had not been finally determined.

   I lodged an application for review of the Department's decision to refuse my application for a Confirmatory (subclass 808) visa on 16 June 2021. 20. I am scheduled to attend a hearing before the Tribunal on 22 June 2023.

   Relevant skills and employment experience

   I have skills and experience in various professions, including working as a Rope Access Technician, Carpenter, Rigger, Set Builder, Shopfitter and Builder. Because of this, I have a unique set of skills that allows me to work in specific positions. For example, the fact that I have worked as a carpenter and a rope worker means that I am able to work on movie sets as a set builder, which is a key role in film, television and media production in Australia.

   I am currently working as a Rope Access Technician and Carpenter for Trades Rope Access Service, Bayswater, Australia. I have been working in this role since March 2023. I am also working as a IRATA (Industrial Rope Access Trade Association) Rope Access Technician and Carpenter with API Rope Access Service, Melbourne. I have been working in this role since 24 February 2021.

   In addition to this, I also provide general carpentry, rigging and rope access services on my personal ABN (4782 6818 757). Under this ABN, I have done work for many clients on an ad hoc basis, including:

   a.Patton's Shade Structures (December 2022 to current) - where I worked as a Carpenter, IRATA Rope Access Technician and a Rigger for the Australian Open and other shade structures.

   b.LAB Production Qune 2022 to January 2023) - where I worked as a IRATA Rope Access Technician and Rigger on the set of "La Brea" - Season 2 (TV series);

   c.c. Allcreative Australia (January 2021 to June 2021) - working as a Set Builder in the production of the movie "Blacklight" (starring Liam Neeson).

   The rest of my work experience, qualifications and relevant licences held are summarised in my CV which I have attached to this declaration and marked as "Annexure 1".

   Life in Australia and future plans

   The events that occurred in 2020 and 2021 have truly affected the trajectory of my life in an adverse way. I would like to contribute more to the Australian economy, but I have been unable to do so due to my visa situation. For example, there have been many jobs that I have not been able to do since I am only holding a Bridging visa. I am also unable to enrol in formal courses for the purpose of obtaining a positive skills assessment so that I can be sponsored by an employer or apply for a skilled visa to live in Australia as a permanent resident.

   My visa situation has placed my entire life in limbo. I am unable to make plans for the future without a proper visa, and I fear that my visa may expire or be cancelled at any time.

   I have invested a significant amount of time and money into my life in Australia. I have spent years of my life in Australia and continued contributing to the Australian economy even throughout the COVID-19 pandemic. I have shipped thousands of dollars' worth of equipment to Australia in order to develop my career and life here. 28. I want to continue to work in Australia and contribute to the Australian economy. In order to do this, I hope that the Minister will be able to intervene and grant me a subclass 408 visa in the Australian Government Endorsed Events (COVID-19 Pandemic event) stream, so that I can have a chance to work and to find a sponsor with a proper substantive visa in my sector.

1. The applicant gave evidence to the Tribunal at the hearing. He stated he was born on 24 January 1989 in Suhl, Thuringia, Germany. The applicant grew up in a small town of 300 people named Gehaus, Thuringia Germany. The applicant’s parents divorced when he was one year old. His father passed away approximately three years ago. The applicant’s mother is living in a mental facility, where she has resided for approximately 10 years. Before she entered this facility, the applicant’s mother was a full-time career for his younger sister. The applicant has one older brother who was born in 1988, who still lives in Germany and works as a concreter. His sister was born in 1996 and resides in a caring facility for people with permanent disability. He attended several schools growing up, but the last school he attended was in Stadtlengsfeld were he completed his secondary education in 2006. The applicant then undertook a three-year apprenticeship as a salesman in Bad Salzungen, where he attended a trade school and worked at a retail company. Following his apprenticeship, he moved to Kassel, where he completed a two-year higher education degree, while continuing to work in the retail industry.

2. The applicant’s evidence was that while h lived in Kassel, he began studying a degree in marketing. He did not finish this degree but continued working with the aim of eventually leaving Germany to travel. The applicant’s first international flight was to Australia, where he arrived in 2015 holding a Working Holiday (subclass 417) visa. The applicant claims that he came to Australia on the recommendation of others and because of the opportunity to work and travel. The applicant first landed in Perth. He stayed in Western Australia (WA) for three months before travelling up the west coast from Bunbury to the north of WA. He completed his 88 days of farm work in at a resort in Port Hedland, to secure a further year on his working holiday visa. After completing his farm work, the applicant continued travelling north to Kununurra and Darwin. He then travelled to Vietnam, before returning to Darwin. The applicant then travelled by road to Cairns, where he stayed for approximately one month before flying to Sydney for New Years Eve where he stayed for a week. He returned to Cairns and travelled down the Queensland coast into New South Wales. He then settled in Sydney, where he began working as a set builder on film sets.

3. The applicant’s evidence is that he worked on film sets in Sydney and the Gold Coast. Towards the end of his second working holiday visa, he was invited to work on a film in New Zealand. The applicant spent two years in New Zealand, between June 2017 and June 2019, where he worked on a film by director Peter Jackson, and travelled. He worked for a construction company on Waiheke Island, near Auckland. The applicant returned to Australia as the holder of a tourist visa, to visit his friends in Melbourne. He kept in contact with people in film industry. In 2019 the company ‘Show Works’ (based in Preston Victoria) offered to sponsor him for a skilled visa. Show Works is a well-regarded company that is in the business of making sets for film and theatre productions and bespoke furniture for clients such as the National Gallery of Victoria. As a result, the applicant travelled from Australia to Bali to lodge his application offshore. In early 2020 he returned to Australia on a Temporary Activity (subclass 408) visa. He arranged for his tools to be shipped from New Zealand to Melbourne.

4. The applicant worked for Show Works for 3 months as the holder of a Temporary Activity (subclass 408) visa. Twelve days before this visa was due to expire, the applicant applied for a second grant of this same visa subclass. The applicant’s evidence was that he lodged his application for a skilled visa but Show Works was badly affected by the Covid-19 pandemic. While the company remained interested in him as a long-term employee, due to the difficult trading conditions the company was forced to let him go. The applicant’s representative noted that the company had the standard business sponsorship and not the temporary activity sponsorship, which is the reason that the applicant’s application for his second Temporary Work (subclass 408) visa was deemed invalid.

5. The applicant stated that it could obtain offers of work and sponsorship, but his immigration status currently prevents him from doing so. He said his goal was to eventually end up on a pathway to being Australian. The applicant stated that he has fallen in love with Australia, and with his work in the movie industry. He said that to progress his career in this industry, it is important to continue working on projects to build experience, and that the industry in Australia will allow him to do that. He says that he has built up a strong reputation in the Australian industry, which he cannot necessarily take with him to another country. The applicant gave the example of his experience in New Zealand, where his evidence was that he had to start at a lower position, carpenter, than what he was accredited as in Australia, a set builder. The applicant also has his tools in Australia, which he would need to transport with him at significant expense.

6. The applicant claims that he would bring a positive benefit to Australia if he were granted the visa. He noted that the movie industry is important to Australia’s economy, and that its workforce does not have enough people with sufficient skills to meet industry demand. The applicant noted that this is the purpose of the Temporary Activity (subclass 408) visa. The applicant stated that he is skilled as both a carpenter and a set builder. As a carpenter, he can make decks, build fences, concrete foundations, build wall framing. The applicant’s evidence is that set work requires more beyond these skills, and that companies in the movie industry would not hire set builders from the open job market. The applicant stated that he is well known in the industry, which is how he has continued to acquire work. In explaining his role in movie production, the applicant stated that at the start of a job, he would receive a call from the movie’s construction manager. He said that he would receive the plans to build specialised pieces for the film, and then execute those plans. The applicant stated that the people who work alongside him in this role also hold specialised skills – some are boat builders, model makers, etc. The applicant himself also works as a rigger. At the conclusion of his evidence, the applicant reiterated that he is a specialist set builder for the movie and theatre industry, and that his skills are in high demand. He also emphasised that he had tried to remain in Australia lawfully throughout his time here.

7. The Tribunal heard evidence from Mr Fitzgerald, a friend of the applicant. Mr Fitzgerald stated that he had recently begun working as a set builder within the last four months and had been working in the construction industry for over ten years before that. He said he started working in this new role at Snow Globe Productions, but due to the cancellation of a movie, he has instead taken up full time employment with Show Works, which he was due to commence the following week. Mr Fitzgerald said that he met the applicant through mutual connections in Melbourne four years ago. They are part of a community of artists and friends who host events and socialise together. Mr Fitzgerald said that he has not worked with the applicant before, but that that everyone in the industry to whom he had spoken about the applicant had attested to the applicant’s skill and reliability. Mr Fitzgerald’s evidence was that there are not many people in Australia who have accrued the applicant’s skills. He defined these skills as including carpentry, artistic, practical and people skills. Mr Fitzgerald also told the Tribunal of the practical and emotional support that the applicant gave him during difficult times, and the great loss that he would be to their shared community.

8. Mr Hackett also gave evidence to the Tribunal. Mr Hackett’s evidence is that he works in the set building industry and in high access construction. He is currently employed by Trades Victoria. He stated that he worked with the applicant as a labourer for two months. He has obtained work on film sets through the applicant’s contacts, though he has not worked on the same set as him yet. Mr Hackett attested to the specialised and sought-after nature of the work that the applicant undertakes.

9. The applicant’s representative described the circumstances which lead to the applicant seeking Ministerial intervention. The representative stated that the applicant applied for a further Temporary Activity (subclass 408) visa in March 2020, 15 days before his visa was due to expire, but was not notified that the application had been invalid until December 2020. By that time, even though there were employers willing to sponsor the applicant, the 28-day period had already lapsed, and he could not apply for another visa. The representative stated that, at this point, the applicant had no further migration options open to him. He said that the applicant had remained in contact with the Department, applying for a Bridging E (subclass 050) visa to maintain to his lawful status. The representative submitted that there was nothing that the applicant could have done to have made his subsequent Temporary Activity (subclass 408) visa application valid, as the invalidity was due to his employer not being approved for the correct sponsorship. The applicant seeks referral to the Minister to be granted a Temporary Activity (subclass 408) visa in the COVID-19 stream, to essentially be restored to the position he would have been in had the application been valid.      

CONSIDERATION OF CLAIMS AND EVIDENCE

Application under review

1. The issue in the present case is whether the applicant satisfies cls 808.211 and 808.212 or cl 808.213, as required by cl 808.211A, which must be satisfied at the time that the visa application is made.

2. As noted above, the applicant concedes that he does not meet the criteria for the grant of the Confirmatory (Residence) Subclass 808 visa and has sought review by the Tribunal to seek the Minister’s intervention pursuant to s 351 of the Act.

3. The applicant held a Bridging E (subclass 050) visa on 25 May 2021 when he lodged the application currently under review. Accordingly, the applicant cannot satisfy cl 808.211, 808.212 or 808.213. In addition to other requirements, cl 808.211 requires the applicant to hold a Resident Return (Temporary) (Class TP) visa or an Emergency (Temporary) (Class TI) visa at the time of application. The applicant’s application is not covered by paragraph 1111(2A)(b), (c) or (d) of Schedule 1 to the Regulations, and so cl 808.213 does not apply. Accordingly, the Tribunal is satisfied that the applicant does not satisfy cl 808.211A, and so does not satisfy the criteria in cl 808.21, which are primary criteria for the grant of the visa.

4. Therefore, the Department’s decision must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant to the applicant a subclass 808 Confirmatory (Residence) (class AK) visa.

REQUEST FOR MINISTRERIAL INTERVENTION

Referral for Ministerial Intervention

1. The Tribunal now considers the applicant’s request for the Tribunal to refer the matter to the Department for consideration by the Minister to exercise his discretion to substitute the Tribunal’s decision for one that is more favourable to the applicant pursuant to s 351 of the Act. That section reads, relevantly:

   Section 351 Minister may substitute more favourable decision

   (1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

2. The Migration Policy and Operational Contents sets out the Minister’s guidelines for the exercise of this intervention power. These guidelines state that: [2]

   A review tribunal may refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of these guidelines. The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet my guidelines for referral, the Department will finalise the case according to these guidelines.

   [2]     Migration Policy and Operational Contents, All stacks > 01/07/2023 > POLICY > MIGRATION ACT > Ministerial powers instructions > Minister's guidelines on ministerial powers (s351, s417 and s501J).

3. The guidelines set out instructions for Departmental officers regarding the cases that should be brought to the Minister’s attention. The Tribunal notes that the recent High Court decision of Davis v MICMSMA[3] held that all requests for Ministerial intervention must be considered by the Minister personally, and that, contrary to the terms of the policy, the Department may not finalise cases without referring them to the Minister. Notwithstanding, the Tribunal may still consider whether an applicant’s circumstances meet those set out within the policy and refer their case for Ministerial consideration. Importantly, whether the Tribunal does so, an applicant is still entitled to seek Ministerial intervention themselves.

   [3]    Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10.

4. The policy describes the ‘unique and exceptional circumstances’ in which the Minister may wish to exercise his power to intervene in the public interest, and ‘other relevant information’ related to that power. The Tribunal considers the following circumstances to be relevant to the applicant:

   4. Unique or exceptional circumstances

   Cases that have one or more unique or exceptional circumstances, such as those describe 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

   ·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

   ·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

5. The Tribunal has considered the applicant’s statutory declaration, the letters of support from his professional associates, evidence of his qualifications, skills and ownership of specialised tools, evidence of the need for workers with the applicant’s skills, evidence of his close personal ties to Australians, and the oral evidence from the hearing.

6. The Tribunal finds that the applicant has ‘fallen through the cracks’ of Australia’s migration system. Through no fault of his own, his former employer did not attain the correct sponsorship for the applicant’s visa. His application was deemed invalid outside of the period in which he could have made alternative sponsorship arrangements. But for his former employer’s mistake, it appears very likely that the applicant would have been granted to Temporary Activity (subclass 408) visa and would be contributing his skills to the Australian film industry. This has resulted in an unfair and unreasonable outcome for the applicant. Further, the Tribunal accepts that the applicant holds specialised skills as a set builder, and that these skills are in demand in the Australian labour market. To that extent, an exceptional economic benefit would result from the applicant being permitted to remain in Australia

7. Therefore, based on the applicant’s evidence, the Tribunal is satisfied that his case is one of unique and exceptional circumstances. Accordingly, the Tribunal recommends that the Minister consider the exercise of discretion pursuant to s 351 of the Act on the basis that this case is one in which the application of relevant legislation leads to unfair or unreasonable results, and one in which exceptional economic benefit would result from the applicant being permitted to remain in Australia.

Jason Pennell
Senior Member