Ottati (Migration) - [2022] AATA 1878

Ottati (Migration) [2022] AATA 1878 (1 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Antonio Ottati
REPRESENTATIVE:  Mr Joseph Italiano
CASE NUMBER:  1911411
HOME AFFAIRS REFERENCE(S):          BCC2019/1243923
MEMBER:Stephen Witts
DATE:1 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

Statement made on 01 March 2022 at 11:14am
CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Chef – subject of an approved nomination – compassionate circumstances – current employment – Australian citizen partner – serious, ongoing and irreversible harm – exceptional economic, scientific, cultural or other benefit – unfair or unreasonable result – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212
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 23 April 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 March 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the medium term stream to work in the nominated occupation of chef ANZSCO code 351311.
The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the subject of an approved nomination.
The applicant, Mr Antonio Ottati, appeared before the Tribunal on 15 February 2022 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominator, Forlano Investments Pty Ltd.
The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.
For the following reasons, the Tribunal has decided that the decision and review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is subject to an approved nomination.
The Tribunal has considered all the material before it including evidence given prior to the hearing and evidence given at hearing.
In particular the Tribunal notes a submission from the applicant’s previous representative dated 16 April 2019 stating that the sponsor lodged a nomination to sponsor an Italian chef, Mr Antonio Ottati, on a 482 visa and that it was refused on the basis that the delegate stated that the nominator did not demonstrate that appropriate labour market testing had been undertaken. It was further stated that evidence was provided regarding a ‘Seek’ advertisement indicating that the position was full-time but that “by a genuine mistake” the nominator also forwarded an ‘Indeed’ advertisement dated October 2017 instead of providing the latest screenshot of the advertisement. It was further stated that the two invoices for the two sites demonstrates that an advertisement was placed on two different websites in the required timeframe.
The Tribunal notes that a letter was provided by a client specialist with ‘Indeed’ stating that an advertisement for a chef for a business called ‘38 Chairs’ was advertised on the website from 25 May 2018 until 17 January 2019. It is noted that the salary for the position was full-time and denoted a salary of $55,000 to $69,000.
It was also noted by the Tribunal that other materials were provided including a letter from ‘Seek’ and a job description for the role of chef noting that the position advertised was full-time and offered a salary of $55,000 to $69,000 and that it was advertised from 30 November 18 until 30 December 18.
At the hearing the Tribunal had a detailed discussion with the parties regarding the application.
The nominator stated that he made a genuine mistake in not providing the most up-to-date information to the Department at the time but that he has subsequently provided the information necessary to ensure that he adheres to the regulations regarding labour market testing.
The nominator stated that he owns restaurants in Melbourne and that the nominee, his nephew, worked for him from 2017 until April 2021 but due to the COVID pandemic he was unable to continue the nominee’s employment.
The nominee stated that he is currently working on the Gold Coast in Queensland as a restaurant manager as he has been able to find full-time work of a temporary nature in Queensland because of the more relaxed pandemic lockdown regulations in that state. He stated that he is in a 3 ½ year relationship with an Australian citizen and that he is considering a partner visa application. He stated that he first arrived in Australia on a tourist and then a working holiday visa and that he subsequently held 2 student visas. He stated that he qualified as a specialty Italian chef back in his home country of Italy and that he studied for and acquired a Diploma of Hospitality Management here in Australia.
The Tribunal has considered this evidence carefully noting that it is satisfied that evidence has been provided of a credible nature that the nominator did mistakenly provide incorrect information regarding evidence of his labour market testing but that subsequently he has been able to demonstrate that he has conformed to the requirements of the appropriate legislative instrument and that he did advertise for periods of more than four weeks on a recognised job portal for the position of chef in accordance with ANZSCO code 351311 and that the Tribunal is also satisfied that the nominee provided evidence that he has worked in the business carrying out the duties of a qualified chef.
However, the Tribunal also notes that in evidence provided the nominator stated that he did not need the nominee anymore in the business, that he has changed the strategy of the business, that he could not necessarily support the nominee in future employment, and did not have a place for him.
The Tribunal has considered the above and notes that therefore it must make a finding that on that basis the nominator cannot employ the nominee in the business as a chef carrying out the duties and responsibilities of a chef in accordance with ANZSCO code 351311 for at least a two-year period.
However, the Tribunal has also considered that the nominator has been impacted severely by circumstances beyond his control, that is the COVID pandemic, and that the nominee has therefore had to travel to Queensland to find appropriate professional employment in a geographic area less prone to government lockdown mandates. The Tribunal also notes that the nominee has been working for some months on a full-time basis with his current employer in Queensland and that consideration under these circumstances should be given to assist the nominee to make an application via his current employer who could nominate or sponsor him for a business visa. The Tribunal also notes that as above the nominee has been in a relationship with an Australian citizen for a period of 3 ½ years and that they are trying for a family and also considering a formal partner visa application. The Tribunal has considered the above and finds that a Special Ministerial Reference should be considered under these circumstances to allow the nominee, and possibly to assist the nominee, in making an appropriate application to continue his residence in Australia.
The Tribunal further notes that the nominee’s partner, the Australian citizen Ms Kimberly Archer, recently lost her brother to cancer, and is now caring for her mother who is living in Queensland with the nominee and herself, and that therefore special consideration should be given on that basis to assist the nominee to retain residence in Australia and that that would be in the interest of Australian citizens.
The Tribunal notes that it made a finding in case number 1908389 subsequent to the hearing on 15 February 2022 as detailed above that the nominator did not meet the requirements as outlined by the regulations. On that basis the Tribunal contacted the applicant in accordance with the obligations outlined in s.359A of the Act on 15 February 2022 noting that the application made by the nominator was refused by a delegate of the Minister and that the nominator sought a review of that decision but that it had been recently affirmed by the Tribunal.
On that basis, the applicant was informed that the application for the nominated position has not been approved. It was also stated that this information is relevant to the review because it is a requirement for the grant of the visa that that position specified in the visa application is the subject of an approved nomination. It was also stated that this means that the applicant did not satisfy the requirement for the grant of the visa and that therefore the Tribunal must affirm the decision that is under review. The applicant was invited to give comments or respond to the above information in writing and that this should be received by 1 March 2022.
The Tribunal notes that a response was received by the Tribunal on 1 March 2022 from the applicant’s representative stating:
“Please find attached a relationship statement from the review applicant indicating the prejudice he would face should he be compelled to return to Italy through the operation of law absent Ministerial Intervention.
In the matters of Jong (Case Number 1821325 delivered on 28 September 2021) and Lena (Case Number 1830240 delivered on 31 May 2021), two differently constituted Tribunals opined that repatriation to Malaysia and Italy respectively, in the midst of the COVID-19 pandemic, constituted, inter alia, exceptional circumstances for recommending Ministerial Intervention. The Tribunal acknowledged also that repatriation would result in chronic unemployment or underemployment which would impact financially on the applicant and where appropriate, members of his family unit: Minister of Immigration and Citizenship v Li [2013] HCA 18; Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 (23 November 2021).”
The Tribunal notes also the following relationship statement provided by the applicant:
I, Antonio Ottati have been in a relationship with Kimberley Archer since December 2019.
We first met in 2019 at ‘Fit n Fast’ Gym in Melbourne. Since the moment we first laid eyes on
eachother, our relationship only began to get stronger. Our relationship took the next step
when we decided to officially move in with each other in May 2020, since this time we have
barely spent a second apart from each other.
I am writing this statement to show how important it is for me to remain in Australia and be
given the opportunity to apply for a sponsorship with Kim. I have now been in Australia since
2014 and due to COVID and the problem with my previous employment sponsorship I am in
the position I am today. Mine and Kim’s shared life with each other belongs in Australia only,
there is no opportunity for Kim to go to Italy. Not only would it be unsafe for her to be in the
country due to the very high crime rates in Naples but because of COVID, the
unemployment rate is almost 10% which would make it extremely hard for her to find work,
especially since she speaks no Italian. This means meeting friends and people would be
impossible. We simply would not be able to support ourselves the same way he can here in
Australia.
Kim is currently not working at the moment due to the recent passing of her brother to
cancer and has been unable to continue employment due to her mental state. She is
currently seeking naturopathy to help with her mental health. This also highlights the further
damage to her mental health moving to Italy would cause, even though she is a very strong
woman, she would absolutely not be able to cope. Her mother has also moved in with us on
the Gold Coast because she no longer could be on her own after the passing. I am pleading
with you to allow me to stay in Australia to support both Kim and her Mother. I want her to be
safe here and be able to move back into employment only when she is ready, not because
she is forced to. Until this time I promise to work as hard as I can to support them both. The
reason we moved to Queensland was because of all the Victorian lockdowns, I was
receiving no financial help from the Government so all of my savings were going towards
paying rent. Now I am working full-time again as a Restaurant Manager and this has
definitely improved Kim’s mental state.
Our wedding date is set for 19th January 2023 which means her Mother will become my
Mother in Law. We are already family. We were supposed to get married last year but of
course again because of COVID, my family was unable to come over from Italy. We are also
already trying for a baby to grow our family and have a little 2 year old beautiful dog together
called Sofia who will also be affected by this.
I would also like to add that since arriving in Australia I have been a model visa holder and
always stuck to the conditions of my visas. I have paid over $20,000 in visas and lawyer fees
and because of the negligence of other people, I am here writing this statement without a
substantive visa and the worry and anxiety of being able to remain here with my fiance. I
cannot live without Kim and she cannot live without me. I cannot put her in the position to
move back to Italy and wait for a decision on our partnership visa. We just want to continue
building our life together here in this beautiful country and continue planning towards the
future without all the stress and anxiety that we have had over the last year.”
Requirement for an approved nomination
Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.
The Tribunal, as outlined above, finds that the applicant is not the subject of an approved nomination.
For these reasons the requirements of cl 482.212(1) are not met.
As one of the essential requirements for the visa is not met, the decision under review must be affirmed
Ministerial Reference
The Tribunal notes that s.351 of the Act gives the Minister a personal, noncompelable 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 type 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 a guideline on cases which it is considered would be appropriate 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 result in the case of a particular outcome.
The Tribunal considers, in this case, that the application of the relevant legislation does lead to such a result.
DECISION
The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.
Stephen Witts
Member