Niven (Migration)

Niven (Migration) [2020] AATA 5287 (17 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mark Andrew Niven
CASE NUMBER:  1912293
HOME AFFAIRS REFERENCE(S):          BCC2018/1154712
MEMBER:Warren Stooke AM
DATE:17 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 17 November 2020 at 4:11pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Baker – subject of an approved nomination – maintained continuous employment in an occupation of short supply – change in business ownership – referral for Ministerial Intervention declined – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 May 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 11 March 2018. 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Baker – ANZSCO Code: 351111.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination submitted to the department by REDTOWER NOMINEES PTY LTD ATF THE BROOKER FAMILY TRUST listing the applicant as their Nominee was refused.
The applicant appeared before the Tribunal on 27 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from John O’Farrell.
The applicant confirmed to the Tribunal that he provided a copy of the delegate’s decision to the Tribunal with his application for review of the delegate’s decision.
The applicant stated that his application was refused on the grounds that the original owner of the business was no longer his sponsor and the application was rejected.
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 is the subject of an approved nomination for the grant of the visa.
The applicant provided evidence that he is currently an employee of Blaxmen Pty Ltd and that this organisation is prepared to provide sponsorship.
The Tribunal asked the applicant if he currently has an approved sponsor for the nominated position and he responded: “No, I have not, but would like the opportunity to put in an application”.
The applicant provided evidence that he is a qualified baker, with a Certificate III in Retail Baking (Combined) FDF30710 TAFE Ultimo, Sydney, which he was awarded on 31 December 2013.
On 29 October 2020, the applicant provided a copy of correspondence dated 12 October 2020 from Mr Robert Laurie, the owner of Blaxmen Pty Ltd – ABN 88625 418 608 (Trading as Delight Whitford City, Western Australia) that confirmed the transfer of employment of the applicant from Redtower Pty Ltd on 3 October 2016, following Blaxmen’s acquisition of the Baker’s Delight franchise. The correspondence also confirmed that the applicant had been employed from 4 April 2016 and that there was contiguous employment with continuity of entitlements for the applicant following the ‘transfer of business’.
The correspondence from Mr Robert Laurie, the owner of Blaxmen Pty Ltd, stated that since 12 August 2020 he had listed 7 job advertisements with no success and that applicants that do respond are not genuine and are merely applying in order to qualify for job seekers or are not qualified bakers.
Further, evidence was provided that Blaxmen Pty Ltd, the applicant’s current employer, is prepared to provide sponsorship for the nominated occupation of Baker - ANZSCO Code: 351111 and commit to at least 2 years of employment. The applicant submitted, prior to hearing, that the occupation is on the short supply list of the Federal Government.
The applicant provided correspondence from Kim House, the owner of two Bakers Delight Franchises, with whom the applicant has worked during the last 5 years on a part-time basis, who stated that qualified bakers are in short supply and that to loose Mark Niven’s calibre and skills would be a great waste of necessary talent.
The applicant provided the Tribunal with a signed affidavit dated 4 June 2019, which included the following information:
·The applicant has an older brother, sister and niece and nephew, who are Australian citizens and that his parents lived in Australia prior to their deaths in 2011 and 2012;
·The applicant’s brother and sister and their families are his only family and they all live in Australia;
·The applicant also has 2 other half-siblings, but he has had limited contact given a significant age difference and not having grown up with them.
The applicant provided written evidence that he has been in Australia since 2012 and has been gainfully employed for this entire period and the applicant provided a chronology of his visa applications, whilst resident in Australia.
Witness Evidence – Mr John Farrell
The witness advised the Tribunal that the applicant does not dispute that he does not have a sponsor and provided evidence that the applicant has had a continuity of employment with the Baker’s Delight Franchise following the transfer of business from Redtower Pty Ltd to Blaxmen Pty Ltd.
The applicant provided the Tribunal with correspondence from Mr Farrell that included the following:
“I have known Mark Niven for about 6 years through his sister Ann Fiona Prosser, who I have had a relationship with for that period.
Mark is a straightforward guy who is hard working. He has a strong family relationship with his sister Fiona, her daughter Lauren & his brother David and his family who live in Sydney.
He visits our home very regularly and often joins us for weekends away and I have enjoyed his company frequently on my boat.
By every measure he is the sort of person that should be welcome in this country.
I’m not familiar at all with our immigration policies but I understand the fact that he has two half-brothers in the UK is to his detriment. That I don’t understand, he does not know them or have any contact with them, his only family are all here living in Australia.
As an individual I fully support Mark & will assist him in any way that is necessary for him to stay in Australia.”
The applicant requested that he be able to provide a further submission to the Tribunal and the Tribunal provided until COB on 2 November 2020 to provide further evidence, which was complied with.
On 28 March 2019, the applicant was provided with an invitation from the Department of Home Affairs for comment, that included the following content:
“Invitation to comment on information for a Employer Nomination (subclass 186) visa
Nomination refused
The nomination submitted to the department by REDTOWER NOMINEES PTY LTD ATF THE BROOKER FAMILY TRUST listing you as their Nominee has been refused. This means that your visa application cannot be approved.
You have the option of withdrawing your application. If you wish to withdraw your application, you must advise us in writing.
Attach your response to your application through ImmiAccount. Form 1446 Withdrawal of a visa application is available online to assist with the written withdrawal.
If your application is withdrawn, a request for a refund of the visa application charge (VAC)
can only be approved in very limited circumstances.
If you do not respond to this letter within 28 days and the application has not been withdrawn then the application will be refused. If your application is refused, the department will notify you if you are eligible for merits review by the Administrative Appeals Tribunal. You will not be eligible for a refund of the VAC following refusal of your visa application.
Outcome should you choose to withdraw your application
You currently hold a bridging visa which was granted to allow you to stay in Australia while your application was being processed.
Your bridging visa will cease 35 calendar days from the date your application was withdrawn.
Unless you are granted another visa or have in place an application for another visa, then you must depart Australia in this 35 day period prior to your bridging visa ceasing. It is not possible to reconsider an application once it has been withdrawn.
Timeframe for response
You must respond to this invitation to comment within 28 days after you are taken to have received this letter. You should provide your response in writing.”
The Tribunal notes that several letters of support were provided to the Tribunal from relatives of the applicant concerning consideration of his visa application, which have been reviewed by the Tribunal.
On 29 October 2020, the applicant confirmed in writing an application pursuant to s351 of the Migration Act for the Tribunal to provide the applicant with a Ministerial Reference.
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.
The Tribunal is satisfied, based upon the evidence of the applicant, that the applicant does not have an approved sponsor for the nominated position of Baker – ANZSCO Code: 351111.
Further, the Tribunal is satisfied that the applicant was invited by the Department of Home Affairs on 28 March 2019 to comment on the refusal of the Redtower Pty Ltd nomination for the occupation of Baker – ANZSCO Code: 351111, which the Tribunal notes was not responded to by the applicant.
On the basis of the evidence provided to the Tribunal, the Tribunal is satisfied that the applicant, following the transfer of Redtower Pty Ltd business to Blaxmen Pty Ltd, that the applicant does not have an approved nomination for the position of Baker – ANZSCO Code: 351111. In this regard, the applicant stated at hearing, in response to a direct question from the Tribunal, as to whether he has an approved nomination: “No, I have not, but would like the opportunity to put in an application”.
Therefore, cl.186.223 is not met.
Ministerial Reference
The Tribunal notes that s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister considers that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department's website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening: >
The guidelines that relate to unique or exceptional circumstances, include compassionate circumstances regarding an applicant's health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship; exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia; and circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation; or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome.
The Tribunal considers, in this case, that the application of the relevant legislation does lead to an unfair or unreasonable result for the applicant, however, the Tribunal finds that the applicant did not respond to the Department’s correspondence of 28 March 2019 when this opportunity was presented.
Whilst the Tribunal is not satisfied that the applicant’s application was accompanied by evidence that meets cl.186.223, the Tribunal regards the following observations as relevant to the consideration of this case:
·The evidence before the Tribunal has demonstrated that the applicant has maintained continuous employment in an occupation of short supply and has demonstrated a continuity of employment with Redtower Pty Ltd and subsequently, Blaxmen Pty Ltd, in the same nominated position without a break in employment continuity. Further, the current employer has provided written evidence that Blaxmen Pty Ltd is prepared to sponsor the applicant in the nominated occupation of Baker – ANZSCO Code: 351111;
·The applicant has an appropriate qualification for the nominated occupation of Baker – ANZSCO Code: 351111 of Certificate III – Retail Bakery;
·The applicant’s knowledge and expertise, in a trade that has a scarcity of qualified personnel within Australian, has been attested to by the owners of Baker’s Delight franchises; and the nominated occupation is included in the Federal Government’s priority of skills list;
·The applicant has been open and honest in his dealings with the Tribunal, and the Tribunal accepts the plight of the applicant and his family following the change in ownership of the franchise where he has continued to work. The Tribunal regards these circumstances, as unintended consequences of the legislation, where a change in business ownership does not permit the applicant to maintain an application on-foot with the nominated occupation subject to a continuity of employment with the new franchisee;
·The Tribunal notes that the Department’s own Procedures Advice Manual (PAM) explains the complex corporate arrangements and allows for some flexibility when it comes to work for associated entities, wherein it states:
“Where parent companies retain elements of the direct employer/employee relationship, they may still be able to nominate even if the actual position is located with an associated entity and other elements of the direct employer/employee relationship and direct control are exercised by the associated entity.
Therefore, also for the purpose of nominations made under the ENS and RSMS DE stream, corporate structures that involve employment by associated entities, and where the nominated position exists within the business activities of entities associated to them (as per s50/s50AAA of the Corporations Act), then this should not adversely impact on the assessment of nominations made under this regulation. That is, the Department will adopt a wider interpretation in instances of an established corporate relationship, including with associated or subordinate entities, by recognising that a ‘direct control’ test can potentially be satisfied in the context of the larger corporate structure, while not allowing completely unrelated businesses to employ the applicant.”[1]
·The Tribunal finds that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to Australian citizens and permanent residents that would be denied access to the skills, that have the potential to be provided by the applicant and that the applicant and his family have been adversely effected by the refusal of the 186 visa;
·The Tribunal is satisfied that the application of the relevant legislation has led to both unfair and unreasonable results for the applicant and his family in this case, by the refusal to grant a 186 visa.
[1] PAM3 [Div5.3] Div 5.3 – General [Div5.3/reg5.19] Permanent Employer Sponsored Entry – Employer Nominations – Regulation 5.19 4.4.6 Work performed for associated entities
Conversely, the Tribunal has considered the actions of the applicant, who did not respond to the request for comment invitation provided by the Department on 28 March 2019, which was issued prior to the delegate’s decision on 1 May 2019. As such, the Tribunal attaches weight to this evidence when considering the matter of a Ministerial Reference against the limitations of the prevailing legislation applying to a change of business ownership, whilst the said applicant maintains a continuity of employment in the intended nominated occupation.
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351, which gives the Minister sole discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant's case and the ministerial guidelines relating to the discretionary power set out in the Department's Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister and that would be the most appropriate course of action in this case given the legislative constraints.
Conclusion
The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
ATTACHMENT 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.

[2020] AATA 5287

17 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies