Nanayakkara Vasan Godakandage (Migration)

Nanayakkara Vasan Godakandage (Migration) [2023] AATA 1690 (1 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sachini Gokila Nanayakkara Nanayakkara Vasan Godakandage
Mr Gereard Dushantha Amarasekera
Master Niduk Deegayu Amarasekera
CASE NUMBER:  2215117
HOME AFFAIRS REFERENCE(S):         BCC2021/352202
MEMBER:Alison Mercer
DATE:1 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter in relation to the first named applicant.
The Tribunal affirms the decisions to refuse to grant Class GF subclass 407 (Training) visas to the second and third named applicants.

Statement made on 1 June 2023 at 11:59am

CATCHWORDS
MIGRATION – Training Visa (Class GF) visa – Subclass 407 (Training) – no approved nomination by an approved organisation – new employer nomination approved – impact on family and employer – economic conditions in Sri Lanka – referral for Ministerial Intervention – no jurisdiction
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 5(1), 36, 140, 195, 337, 338, 347, 351, 411, 412
Migration Regulations 1994, Schedule 2, cl 407.213, 407.214, 407.311; rr 1.03, 2.12, 2.58, 2.76, 4.02
CASES
Ahmad v MIBP [2015] FCAFC 182
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

An application was made to the Tribunal on 14 October 2022 for review of decisions made by the Department of Home Affairs to refuse to grant the applicants Class GF subclass 407 (Training) visas on 6 October 2022. It was accompanied by a copy of the Department’s decision and an authority by which the applicants appointed a registered migration agent, Mr Kasun Gamlath, as their representative and authorised recipient for correspondence.
The applicants applied for the visas on 10 March 2021. The first named applicant was the primary applicant, and the second and third named applicants (the first named applicant’s husband and son) were included as members of her family unit. The Department refused the visas because the delegate found that the first named applicant did not meet cl.407.214 of Schedule 2 to the Migration Regulations (Cth) (1994) (the Regulations), which required (amongst other things) that she was the subject of an approved nomination by an approved organisation. The delegate found that she was not, and therefore she did not meet the primary visa criteria for the subclass 407 visa. The delegate refused to grant visas to the second and third named applicants as they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 407 visa, and there was no evidence that they met the primary visa criteria in their own right.
The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable.
A decision to refuse to grant a subclass 407 visa is a reviewable decision under Part 5 of the Migration Act 1958 (the Act) in certain circumstances.
As of 13 December 2018, legislative amendments were introduced by the Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 (which applies to primary decisions made on or after 13 December 2018, regardless of the visa application date) which provide that:
·if the applicant made the visa application while in the migration zone and, where it is a criterion for the grant of the visa that the applicant is 'sponsored' by an 'approved sponsor', then at the time that the primary decision to refuse the visa is made:
The term, 'sponsored', is relevantly defined as including being identified in a nomination under s.140GB of the Act: s.337 of the Act and r.4.02(1AA) of the Regulations. The term, 'approved sponsor', is defined in s.5(1) of the Act as a person who has been approved by the Minister under s.140E of the Act in relation to a class prescribed by r.2.58 of the Regulations and whose approval has not been cancelled or otherwise ceased to have effect, in relation to that class; or a person (other than a Minister) who is a party to a 'work agreement'. A 'work agreement' is an agreement that satisfies the requirements prescribed by r.2.76 of the Regulations: s.5(1) of the Act.
It is a requirement for the visa that an approved sponsor has agreed, in writing, to be the sponsor of the applicant and that the sponsor is a 'temporary activities sponsor', or if the application for the visa was made on or before 18 May 2017, a 'professional development sponsor' or a 'training and research sponsor': cl.407.213 of Schedule 2 to the Regulations. Each of these types of sponsor is a person who is an 'approved sponsor'; and is approved as a sponsor in relation to the relevant sponsor class by the Minister under s.140E(1) of the Act: ss.5 and 140E of the Act and rr.1.03 and 2.58 of the Regulations. It also a requirement for the visa that the sponsor has nominated a program of occupational training in relation to the applicant under s.140GB(1)(b) of the Act: cl.407.214 of Schedule 2 to the Regulations. It is therefore a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor and s.338(2)(d) applies (Ahmad v MIBP [2015] FCAFC 182 (Katzmann, Robertson and Griffiths JJ, 16 December 2015) (Ahmad)).
Accordingly, such a decision is only reviewable where, at the time the primary decision is made, one of the subparagraphs in s.338(d)(i) – (iii) must apply (as set out in the last 3 dot points of paragraph 5 above).
On 17 October 2022, the Tribunal wrote to the applicants via their agent to advise that it had formed a preliminary view that the application for review of decision for the first named applicant was invalid, because at the time of the delegate’s decision to refuse to grant the visa, the first named applicant was not identified in an approved nomination that had not ceased, and nor was there a valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E of the Migration Act 1958, nor of a decision not to approve the nomination under s.140GB of the Act. The Tribunal noted, however, that this was a matter which must be determined by a Member. The Tribunal invited the applicants to make any comments about whether a valid application had been made by 31 October 2022.
On 28 October 2022, the Tribunal received submissions and supporting documents from the applicants and their newly appointed representative and authorised recipient for correspondence, Mr Tan Tai Huynh. The submissions were as follows:
…
We refer to your letter dated 17 October 2022 regarding the invitation to comment on the validity of Mrs Nanayakkara’s application for a review of the decision to refuse her the Visa Subclass 407. Attached is the letter for your reference (AA – 04). The invitation was required to be given by 31 October 2022.
Extension of time
We respectfully request an extension of time to provide evidence that Mrs Nanayakkara is identified in an approved nomination. The period of extension is until the nomination is approved.
Reasons for the extension of time
Ineffective assistance from previous migration agents
Mrs Nanayakkara has found another employer – Clover Foods Pty Ltd (ABN: 73 638 152 119) (Clover Foods) - that was capable of providing an approved nomination for her visa and already an offer to her on 4 October 2022. Clover Foods since then has applied to be a business sponsor. Attached is letter from the Department of Home Affairs acknowledging the sponsorship application (BB – 06) and a letter of Offer from Clover Foods (BB – 05).
However, a delegate from the Home Affairs Department called Mr Mehdi, a migration agent previously engaged by Mrs Nanayakkara for her visa and AAT application, on 6th October 2022 to enquire about her visa application. Mr Mehdi immediately advised the delegate that Mrs Nanayakkara could not provide another an approved nomination. This was a mistake and negligence on the part of Mr Mehdi as he advised the delegate without consulting with Mrs Nanayakkara. There was a long period with no communications between Mrs Nanayakkara and Mr Mehdi on or before 6th October 2022. As such, Mr Mehdi should not have advised the delegate in the manner that he did. He should have requested from the delegate more time to consult with Mrs Nanayakkara before responding to the Delegate.
Had Mr Mehdi advised the delegate about Clover Foods and requested more time, her visa application should not have been refused. The visa refusal decision was made on 6 October 2022 and Mrs Nanayakkara was given until 4 November 2022 to either appeal the decision or leave the Country. Mrs Nanayakkara then engaged Mr Gamlath in relation to her AAT application. However, Mr Gamlath mistakenly applied to the Administrative Appeals Tribunal (AAT) on 14 October 2022 and not the 4th November 2022. Further, Mr Gamlath omitted to advise the AAT of Clover Foods.
Had Gamlath attended to the application of a sponsorship application and waited till 4th November 2022 to make the AAT application, at the time of the application, Mrs Nanayakkara would have been able to provide an approved nomination with her visa application.
Real Prospect of visa application success and long-term successful career
Clover Foods is a successful business with turnover of more $10million and employs over 85 people. The sole and managing director of Company, Ms Leanne Moore, personally interviewed Mrs Nanayakkara and wished to retain Mrs Nanayakkara for her valuable skills and experience. Attached is the letter from the Ms Moore addressed to the AAT in relation to the Mrs Nanayakkara’s application.
Ms Moore emphasised that Mrs Nanayakkara would make valuable contribution to the success of Clover Foods. Ms Moore has found it hard to find a reliable skilled employee with good work-ethics like Mrs Nanayakkara and has failed to do so in a long time. Clover Foods has already applied for to be a business sponsor and is expected to have their application approved in due course. Clover Foods satisfied and exceeded by a large margin all the statutory requirements to be a business sponsor (AA-22).
Attached is also the letter from Mrs Nanayakkara and her family, showing their love to Australia and how Australia was the only country her child lived and known most of his life (AA-23).
Her only misfortune or mistake in her visa application process was timing and the reliance on the ineffective migration agents to help with her visa application.
…
The supporting documents included:
·letter of offer to the first named applicant from Clover Foods Pty Ltd, dated 4 October 2022, for the position of Accountant;
·Department acknowledgement letter dated 25 October 2022 of application by Clover Foods Pty Ltd to be approved as a sponsor;
·copies of the first named applicant’s educational qualifications and English test results; and
·supporting statements from Leanne Moore, director of Clover Foods Pty Ltd, dated 4 October 2022, and the first named applicant, undated.
In her statement, Ms Moore made the following points:
…
I am writing to advise that Sachi Nanayakkara Vasan Godakandage is competent in English and is multilingual which is an added benefit to the role as the company has a diverse workforce. Sachi has previous experience as an accountant working with the Xero platform which makes her a valuable asset to the company and is likely to have a long working future with the company. I look forward to engaging Sachi in employment with Clover Foods Pty Ltd.
…
In her statement, the first named applicant made the following points:
…
I am writing this email with regards to my application to the Administrative Appeals Tribunal. After completing my Masters in Professional Accounting, I lodged an application for a 407 sponsored training visa through my then employer as I was already working for him from January 2021. Around April and May 2022, my then employer informed me that his business was financially struggling due to the pandemic lockdowns and that he is unable to continue with my sponsorship. I met with a Migration Agent to explore my options and in the meantime, I have been searching for a prospective employer. I have given authority to the said agent to communicate with immigration on my behalf. On 9th of June 2022, my then agent informed me that Immigration has notified him of no approved nomination for me. I kept looking for a sponsorship opportunity to transfer my nomination and by late September, I found a company who was interested in hiring and sponsoring me. On 4th October the company agreed to sponsor me on 407 visa. I received my offer letter and contract and the company was getting ready to prepare the documentation to lodge for the sponsorship approval. On 7th of October, my then agent informed me that my visa was refused.
On 6th October 2022, he had informed to the Immigration officer over the phone, that his client; I had no sponsorship even though I have already had an offer letter just a few days prior. I requested him to speak to the immigration to inform of my offer. With disappointment, I went to another agent hoping he could help me out as I already had a legitimate sponsor. I introduced my prospective sponsor to that agent; however, the second agent has only lodged the AAT appeal without any supporting documentation.
I have always loved Australia. I have studied my Advance Diploma, Bachelors and Masters in Australia and worked in many industries and paid my taxes on time. I have received two awards during my studies – the Dux of Tourism from Box Hill Institute and the Executive Dean’s Award from Charles Stuart University. I have work experience in customer service, event and tourism management, administration and accounting through many roles I have taken up during my time in Australia. I have worked in small businesses as well as large entities, working in different contexts; from diverse to fast paced. I believe I can contribute tremendously to this wonderful country through my qualifications and experiences I gained within Australia as well as in overseas. My English language competency is at an admirable level with an overall IELTS score of 8 (8.5 Reading, 8.5 Listening, 8 Speaking, 7.5 Writing).
My husband Gereard Dushantha Amarasekera has been working fulltime within an essential services industry for the past 4 years. My 7 year-old son who came to Australia when he was just 3, has spent most his life in Australia. From his early childhood education to the first two primary school years have been in Australia. He is well adapted at school and within the Australian culture. For him, it would be quite the struggle emotionally and physically to move back to Sri Lanka especially within such a short notice.
Sri Lanka is currently in a major economic turmoil and have officially claimed bankruptcy. Returning to Sri Lanka in such a short notice will be dreadful especially with a primary school aged child. My son is having his education in English medium being in Australia. Therefore, his first language has become English. Most English medium schools in Sri Lanka starts its year in September as per the Cambridge syllabus. If we are to leave in November, my child would miss out 3 months of his next school year (grade 2) and 2 months of his current school year (grade1). That is almost half a year of school which is a vital part of a child’s development. Furthermore, in Sri Lanka, school admissions start at least a year ahead therefore, finding a school for him would be of an utmost challenge. If we were to leave in November, he will be leaving the life he has ever known in a blink of an eye.
My first working day at my new employer will be on the 2nd of November. I have invested so much on my studies and was looking forward in making the most at my new employer; learning, growing and contributing. I believe I can build a long-term working relationship with her. I would kindly request you to reconsider my application as I have already had a confirmed offer of employment when unfortunately, I was refused of my visa. Looking forward in hearing a favourable reply.
…
The first and second named applicants attended a hearing with the Tribunal on 21 March 2023. Their employer, Ms Leanne Moore of Clover Fresh Foods Pty Ltd, also attended and gave evidence. The applicants’ agent also attended the hearing and made oral submissions.
The first named applicant confirmed the contents of her written statement, noting that she and her husband had received various advices from different migration agents but no one until their current agent had advised them that the applicant might be eligible to apply for a subclass 190 visa. The applicant explained that she originally applied for a subclass 407 visa on the basis of her employment with Clearword Holdings Pty Ltd, a company that operated several restaurants and a cleaning service. She had been working for them while studying and they offered to nominate her for a subclass 407 visa. However, in 2022, her employer began to indicate that things were not going well with the business, so she started to look around for another potential placement. The applicant told the Tribunal that she was not formally told by her employer that they were withdrawing their nomination of her, but found out when she received the Department’s natural justice letter. Her agent at the time, who worked within her employer’s business, told her not to do anything in response, and to apply to the Tribunal once she received the visa refusal, as this would buy her time.
The applicant said that this was frustrating as at this time, she was in discussions with Ms Moore of Clover Fresh Foods Pty Ltd, where her husband had been working since 2018, and Ms Moore had indicated that she was willing to nominate the applicant for a subclass 407 visa.
Ms Moore gave evidence that she employed the second named applicant in 2018 as a production and packaging assistant, but he had now been promoted to be second in charge (2IC) to the operations manager. Ms Moore told the Tribunal that her company provided packaged meals and food to a variety of organisations, including being the sole provider to the Monash Health Group and its associated hospitals, plus various government departments and organisations. She explained that this meant that the company had to operate within extremely strict parameters as their food was made fresh each day and provided to (in the case of the hospitals) potentially vulnerable people. She told the Tribunal that the company was the only class 1 provider in Victoria as a result of its high standards. Ms Moore indicated that the second named applicant was a critical employee in relation to the company maintaining its high standards.
Ms Moore confirmed that she offered to nominate the applicant as a graduate accountant in October 2022 as the company had a genuine need for an accountant in-house. Ms Moore explained that previously, the company used external accountants but there were problems with this and she made a decision to employ an in-house accountant. Therefore, she was more than willing to nominate the applicant to work in-house as a graduate accountant. Ms Moore told the Tribunal that the applicant spent 3 months in various parts of the business, learning its operations, then took on the accountant role. Ms Moore said she was very pleased with the applicant’s performance in this role, and noted that the company now had better control over its finances and that she had recently hired a part time assistant for the applicant. Ms Moore said that both applicants had critical roles in the company and were loyal and hardworking. She expressed frustration and dismay that the visa system did not appear to allow for them to be able to easily get subclass 407 visas now, even though the company’s nomination of the applicant had been approved in late 2022.

The Tribunal discussed with the applicants, Ms Moore and their agent the contents of the Tribunal’s natural justice and s.359A letter of 17 October 2022, setting out the reasons why the Tribunal believed that it did not have jurisdiction to review the decision to refuse the applicant a subclass 407 visa, and why it believed it would have to affirm the decisions to refuse to grant the second and third named applicants subclass 407 visas.
The applicants’ agent conceded that legally, the Tribunal did not have jurisdiction to review the decision to refuse to grant the applicant a subclass 407 visa, and would have to affirm the refusals of visas to the second and third named applicants. He noted that the review application for the second and third named applicant was therefore nugatory and stated that the Tribunal should refund the review application fee if possible. The Tribunal discussed with the applicants and their agent its view that as the review applications were combined, and the Tribunal had jurisdiction in relation to 2 out of the 3 review applicants, it had no legal power to refund the review application fee.
The applicants and Ms Moore told the Tribunal that it was hard to accept that this was the legal situation when both applicants were gainfully employed with Ms Moore’s business, and she wished to keep them and the company’s nomination of the applicant had been approved. They indicated that it was stressful and distressing for all of them.
The applicants’ agent advised the Tribunal that he had discussed a number of options with the applicants. One was applying for bridging visa Bs for the applicants to go offshore and lodge new subclass 407 visa applications, but he noted that there was no guarantee that the Department would grant the applicants bridging visa Bs to do so, and the time frame for processing might be up to 6 months. The applicants’ agent said that the applicant was about to sit a PTE English test and apply for a skills assessment with a view to apply for a subclass 190 visa onshore but he noted that it was difficult to know if the applicant would obtain a nomination from the state government as accountants were currently not considered to be in short supply. Therefore, this option was also uncertain. The applicants’ agent indicated that his intention was to request Ministerial intervention in the event of an unsuccessful Tribunal outcome, noting that for the second and third named applicant, this would be made under s.351 of the Act, but for the first named applicant, it would have to be pursuant to s.195A of the Act. He further indicated that he had successfully pursued this course of action before, when s.351 was inapplicable because the Tribunal had found it had no jurisdiction in relation to an applicant.
The applicants, Ms Moore and the agent summarised the reasons for requesting Ministerial intervention, noting that:
·the applicants were in long term employment in critical roles in an extremely successful Australian business (with a current annual turnover of approximately $13 million and over 80 employees) and there was an approved nomination by the business of the applicant;
·Ms Moore’s business would be adversely affected if the applicants were unable to continue in their roles, as the business had spent time and money on training them and they were productive and loyal employees with crucial roles within the business;
·the applicants and their son had been in Australia since 2018. The applicant had successfully completed several qualifications here and been recognised for her academic performance. The applicants’ son was 3 years old when he arrived and was now in Grade 2 at his local Catholic primary school, where he was well settled. English was now his first language and he would suffer educationally and emotionally if now required to return to Sri Lanka and enter the education system there, which had a different calendar. Moreover, most schools there were Sinhala medium and English medium schools were expensive;
·the economic situation in Sri Lanka was dire, with high unemployment, and fuel and medicine shortages. The first and second named applicant sent money back to their parents there to support them, but they themselves no longer had any social or employment networks there;
·the first named applicant’s brother was an Australian citizen and the applicants were well settled in the Australia community; and
·in the circumstances of this case, the application of the law had a particularly unfair and unintended consequence not only for the applicants but also for their Australian employer.
The Tribunal undertook to consider carefully whether to refer the matter to the Minister itself, noting that it appeared that it could only do so pursuant to s.351 of the Act in relation to the second and third named applicants.
ASSESSMENT OF LAW, CLAIMS AND EVIDENCE
Primary review applicant
The evidence before the Tribunal indicates that the applicant applied for the subclass 407 visa on the basis of a nomination by Clearword Holdings Pty Ltd; however, the company withdrew its nomination of the applicant on 8 June 2022. As the nomination application had been withdrawn, the Department refused to grant the applicant a subclass 407 visa on 6 October 2022.
At the time of the primary visa refusal on 6 October 2022, the applicant was not sponsored by an approved sponsor in that she was not identified in a nomination under s.140GB of the Act that was approved or pending. The Tribunal notes the applicant’s evidence that she had been offered employment, and a nomination, by Clover Fresh Food Pty Ltd, but is satisfied that no nomination by that company had been lodged by 6 October 2022.
Furthermore, there was no pending application for review with the Tribunal of a decision not to approve a sponsor under s.140E or not to approve nomination under s.140GB.
As noted above, on 17 October 2022, the Tribunal invited the applicant to comment on the validity of the application for review. The response provided indicated that the first named applicant had found another employer willing to apply to be approved as a sponsor and nominate her for a subclass 407 visa. However, it was not argued that the first named applicant was the subject of an approved nomination for the purposes of the subclass 407 visa application at the time that the primary refusal decision was made on 6 October 2022.
The Tribunal finds that, at the time that the decision to refuse to grant the visa was made, the first named applicant was not 'sponsored' by an 'approved sponsor' and no review of a decision not to approve the sponsor was pending. Accordingly, the requirements of s.338(2)(d) were not met.
As such, the delegate's decision in the relation to the first named applicant is not a reviewable decision under s.338(2) or under any of the other subparagraphs of s.338 and r.4.02(4).
As the delegate's decision is not reviewable in these circumstances it follows that the application for review was not properly made in relation to the first named applicant and the Tribunal does not have jurisdiction in this matter in relation to her.
Members of the family unit
The Tribunal must affirm the decisions to refuse to grant subclass 407 visas to the second and third named applicants as they cannot meet the secondary visa criteria in cl.407.311 requiring them to be members of the family unit of a person who holds a subclass 407 visa, and there is no evidence that they meet the primary visa criteria in their own right.
Other matters
The applicants have requested that the Tribunal refer their matter for Ministerial intervention. The Tribunal notes that s.351 of the Act provides the Minister with a personal, non-compellable discretion to intervene in the case of an unsuccessful applicant at the Tribunal and to substitute a more favourable decision.
However, the Minister may only use his or her powers to substitute a decision that is more favourable to the applicant where the Tribunal has first made a substantive decision on the merits of the review. A finding by the Tribunal that it lacks jurisdiction to conduct a review is not a substantive decision on the merits and therefore does not engage the Minister’s powers under ss 351, 417 and 501J of the Migration Act.[1]
[1] In relation to the Minister’s powers under ss 351 and 417, the Minister may substitute a decision of the Tribunal made under ss 349 and 415. A finding that the Tribunal lacks jurisdiction is not a decision under ss 349 or 415.
Accordingly, the Tribunal finds that it cannot refer the first named applicant’s case for Ministerial intervention.
In relation to the second and third named applicants, the applicants’ agent’s arguments that there were grounds for Ministerial intervention are set out at paragraph 23 above.
The guidelines for Ministerial intervention are contained in the Department’s Procedures Advice Manual (PAM3), the current version of which (19 May 2023) provides as follows:
…
3. Ministerial intervention principles
The following principles apply to the intervention powers covered by these guidelines:
·     it is my general expectation that a person who has not been granted a visa through the statutory visa process will leave Australia
·     consideration of a case for intervention is at my discretion and is not an extension of the visa process
·     if a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for me to intervene
·     I will view a case referred to me unfavourably if the person has not complied with the conditions of a previous visa, has provided false or misleading information to the Department or any other relevant authority (such as an assessing authority) or has been an unlawful non-citizen
·     I expect a person requesting my intervention to:
obe a lawful non-citizen if they are in the community when they make their intervention request and remain a lawful non-citizen until that request is finalised
ocooperate in ensuring that their travel documents are available and valid, and
ocontinue to engage with the Department and assist with any enquiries, particularly those concerning their identity
·     I expect a person requesting my intervention to continue to make arrangements to leave Australia while their request is being progressed. If the request is unsuccessful, I expect any person who is the subject of the request to leave Australia.
CASES THAT SHOULD BE BROUGHT TO MY ATTENTION
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
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:
oany offence or fraud against the migration or citizenship legislation
oany failure to comply with their visa conditions
oany periods as an unlawful non-citizen in the community
otheir 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.
…
The Tribunal is satisfied that the applicants’ circumstances do not appear to fall within any of the ‘inappropriate to consider’ criteria set out above.
The Tribunal considers that in this case, the application of the relevant legislation gives rise to an unfair and unreasonable result in this case, one which would significantly disrupt the operations of a successful Australian business, in circumstances where both the first and second named applicants are gainfully employed in that business, where that business is an approved sponsor, where the applicants are well integrated into the Australian community, and where departure from Australia would disrupt not only the adult applicants and their Australian employer, but also the applicant’s young son, who is currently undertaking his primary school education in Australia and who has lived in Australia since the age of 3.
Accordingly, the Tribunal considers it appropriate to refer this matter for Ministerial intervention consideration.
DECISION
The Tribunal does not have jurisdiction in this matter in relation to the first named applicant.
The Tribunal affirms the decisions to refuse to grant Class GF subclass 407 (Training) visas to the second and third named applicants.
Alison Mercer
Member

[2023] AATA 1690

1 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Judicial Review