Owen (Migration)

Owen (Migration) [2022] AATA 1981 (29 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Eleanor Jayne Owen
Mr Guy William Hibberd French
REPRESENTATIVE:  Ms Simone Louise Kearney (MARN: 1173899)
CASE NUMBER:  1834092
HOME AFFAIRS REFERENCE(S):          BCC2018/3326067

MEMBER:Warren Stooke AM
DATE:29 April 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Training (Class GF) visas.

Statement made on 29 April 2022 at 9:52am

CATCHWORDS
MIGRATION – Training (Subclass 407) visa – Subclass 407 – applicant was not identified in an approved nomination by an approved Training and Research sponsor – applicant is currently pursuing a 494 Regional Sponsored Visa – strong compassionate circumstances – intention to seek a Ministerial Reference – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2
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 6 November 2018 to refuse to grant the visa applicant a Training (Class GF) Subclass 407 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 3 September 2018. The delegate refused to grant the visa on the basis that the applicant was not identified in an approved nomination by an approved Training and Research sponsor.
The applicants appeared before the Tribunal on 3 March 2022 to give evidence and present arguments.
The applicants were represented in relation to the review.
The Tribunal corresponded with the applicant on 11 March 2022, with a request for comment on the decision of the Tribunal in Case Matter: 1834072 relating the proposed sponsor, DEFINITIVE EVENTS PTY LTD (the nominator).
On 24 March 2022, the representative for the applicant responded to the Tribunal concerning the current status of the applicant’s migration intentions.
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 has an approved sponsor for the training provided in support of a 407 visa.
The applicant was granted a Bridging Visa A on 3 September 2018 with condition 8547.
The applicant provided evidence that she has a Bachelor of Science from the University of Leeds and is a citizen of the United Kingdom.
The Tribunal corresponded with the applicant on 11 March 2022, with an invitation to comment or respond to information relating to a decision by the Tribunal in Case Matter: 1834072, as follows:
“Case number: 1834092
11 March 2022
Dear Ms Owen and Mr French
INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MS ELEANOR
JAYNE OWEN AND MR GUY WILLIAM HIBBERD FRENCH
I am writing on instruction from the Member conducting your review, in relation to the
applications for review made by you in respect of decisions to refuse to grant Training
(Class GF) visas.
In conducting the review, we are required by the Migration Act 1958 to invite you to
comment on or respond to certain information which we consider would, subject to
your comments or response, be the reason, or a part of the reason, for affirming the
decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
·The application for approval of the nominated position made by DEFINITIVE
EVENTS PTY LTD (the nominator) was refused by a delegate of the Minister for
Immigration. The nominator sought a review of that decision, but it was recently
affirmed by the AAT. This means that the nominator’s application for the nominated
position has not been approved.
A copy of the nominator’s decision is attached. This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
If we rely on this information in making our decision, we may find that the position
specified in your visa application is not the subject of an approved nomination. This
would mean that you do not satisfy a requirement for the grant of the visa and that we
must affirm the decision that is under review.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 25 March 2022. If the comments
or response are in a language other than English, they must be accompanied by an
English translation from an accredited translator.
If you cannot provide your written comments or response by 25 March 2022, you may
ask us for an extension of time in which to provide the comments or response. If you
make such a request, it must be received by us by 25 March 2022 and you must state
the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether
or not the extension has been granted.
If we do not receive your comments or response within the period allowed or as
extended, we may make a decision on the review without taking any further action to
obtain your views on the information. You will also lose any entitlement you might
otherwise have had under the Migration Act 1958 to appear before us to give
evidence and present arguments.
If you have any questions, please email [email protected], or contact me on the
number listed below, or telephone our national enquiry line on 1800 228 333. For
language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”
On 24 March 2022, the Representative provided the Tribunal with the following information:
“Re: INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MS ELEANOR
JAYNE OWEN AND MR GUY WILLIAM HIBBERD FRENCH
Case number 1834092
I refer to your correspondence of 11 March 2022. Thank you for allowing Ms Owen and Mr French the opportunity to respond.
FC Lawyers are acting on behalf of Ms Owen and her employer in her application for a Skilled Employer Sponsored Regional (Provisional) visa (subclass 494). The application is advanced in its preparation, and we anticipate that both the nomination and visa applications will be submitted with the Department of Home Affairs by 20 April 2022.”
The applicant provided evidence that she does not have a contract with DEFINITIVE EVENTS PTY LTD (the nominator), as the training with that company has concluded.
The applicant provided evidence that she is now employed as an Events Manager with Northern Territory Major Events since November 2021 and is residing in the Northern Territory.
The applicant provided the Tribunal with a detailed resume of her employment experience since arriving in Australia and prior to her current employment with the Northern Territory Major Events, as follows:
Event Manager • Logistics Events Australia • May - Aug 2018
• Lead on one of Australia’s largest outdoor winter festivals, Winterlight, which
sees 100,000 patrons attend.
• Source and manage all suppliers and contractors
• Produce all event documentation including Event Plan, Emergency
Management, Risk Assessment and Traffic Management documentation.
• Direct all site operations during bump in, out and operational hours.
• Source and manage programming elements for live entertainment and
workshop activities.
• Manage and track event budget of $1.2 million, provide acquittal post event.
• Recruit and manage team of 30 casual staff
• Oversee use of POS system, ticketing queries and all cash handling
processes.
Event Operations Coordinator • SME360 • Nov 2016 - Present
• Member of operational team for event portfolio of 20+ mass participation
sports events including triathlons, cycling and running events.
• Assist with warehouse and vehicle logistics pre and post event.
• Coordinate or assist in delivery of any event area as required.
• Complete operations bump in and bump out of event site.
Operations & Logistics Coordinator • GTR Events • Dec 2017 - Feb 2018
• Multi faceted role covering operations, logistics and workforce.
• Sourcing and logistical management of 80 vehicles and equipment involved in
the Jayco Herald Sun Tour.
• Advise and assist volunteer recruitment drive for CA Road National
Championship and Jayco Herald Sun Tour.
• Reviewed database and approach and devised and implemented new
recruitment tactics.
• Budget and inventory tracking.
• Liaison with stakeholders, sponsors, athletes and team staff to determine
requirements and deliver to expectation.
Project Manager • One Fat Sheep • May 2016 - July 2018
• End to end project management of client and internal projects.
• Devised and managed budgets, delivering approx $600k of projects and
support work over the past 12 months.
• Delegation of responsibilities and tasks to project team of up to 12 remote
workers.
• Source new contractors/staff and oversee hiring process, including all legal
documentation and contractual agreements.
• Working with highly respected brands including Air New Zealand, Red Bull,
Frucor, Ziptrek and Queenstown Airport.
• Created production scopes, established timelines and delivered projects to
client expectations.
• Management of all client accounts and invoicing.
• Use of CRM’s to manage sales leads and client accounts.
• Remote position which requires strict self management and initiative.
Volunteer Manager • Falls Festival Lorne • Dec 2016 & 2017
• Onsite management of approximately 500 volunteers.
• Coordination with various area managers to reassign volunteers according to
requirements around event site.
• Completion of all accompanying legal and administrative paperwork.
• Working with volunteers and Event Managers to assign minimum hour
requirements to volunteers.
Workforce & Officials Manager • Amy’s Gan Fondo • Aug - Sept 2016 & 2017
• Recruited and managed volunteer workforce of 250 individuals.
• Budget tracking of involved costs.
• Managed all workforce related operations and logistics including catering,
accommodation, transport and comms for all event personnel.
• Completed PO’s, invoices and other administrative tasks
• On site delivery of event, managing the Workforce and supervising the venue.
• Onsite liaison with Cycling Australia event officials and stakeholders.
Volunteer HQ Manager • Splendour in The Grass • July 2017 & 2018
• Part of a small team managing 10 staff and over 900 volunteers.
• Coordination with area managers to deploy or reassign volunteers according
to changing requirements around event site.
• Ongoing problem solving and issue resolution.
Project Manager • Plattar • May 2016 - April 2017
• Managed innovative Augmented Reality projects for a growing startup.
• Devised and managed budgets, created production scopes, established
timelines and delivered projects to client expectations.
• Provided on site testing and troubleshooting of company software and
hardware for stakeholders and clients.
• Produce and edit company documentation including stakeholder reports, post
delivery reports, client onboarding and sales collateral.
• Ran client scoping and innovation workshops.
• Management of client accounts and invoicing.
• Use of CRM’s to manage sales and client accounts.
• Use of emergent technology and developing software requires. consistent
initiative to upskill in current industry developments.
• Worked on projects for some of Australia’s biggest brands including Aus Post,
PWC, News Corp, Bega and Serco.
Volunteer Manager • Ironman, Victoria 70.3 Events • Oct 2016 - Feb 2017
• Recruitment, rostering and on site management of 400+ volunteers.
• Work with area mangers in event lead up to determine requirements.
• Manage budget for volunteer payments and catering.
• Exercise flexibility and problem solving during event to adapt to changes in
needs and any unforeseen circumstances.
Volunteer Manager • Queenstown Winter Festival • May-July 2016
• Worked with Event Managers to establish volunteer requirements.
• Recruited team of 100 volunteers, assigning them to roles based on skills and
experience determined by a thorough interview process.
• Co-ordinated volunteer force over 10 day festival period, proactively and
reactively solving problems during this time.
• Assisted with event delivery, liaising with contractors and stakeholders.
Conference & Event Coordinator • HQNZ • April 2016 - Aug 2016
• Assisted in warehouse for pre and post-event logistics.
• Assisted event pack in and out.
• Guest liaison during conferences or day excursions.
Social Zone Coordinator • IRONMAN, The Pioneer • Jan - Feb 2016
• Managed daily pack in, pack out and monitoring of Social Zone.
• Liaised with contractors, suppliers, other venue managers, marketing and
athlete support staff.
• Frequently solved problems with only limited resources available.
• Inaugural event that required adaptability for unforeseen issues”
The applicant advised the Tribunal that she has applied for a 494 Regional Sponsored Visa related to her current employment with Northern Territory Major Events.
Ministerial Reference
During the course of the hearing the applicant confirmed to the Tribunal that it was her intention to seek a Ministerial Reference, pursuant to s.351 of the Act, pending the approval of a 494 visa application that was advised by the applicant’s lawyer would be submitted to the Department of Home Affairs by 20 April 2022.
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, and accordingly, has decided to refer the matter to the Minister for consideration.
Whilst the Tribunal is not satisfied that the applicant’s application was accompanied by evidence that meets cl.407.214, the Tribunal finds that a Ministerial Reference from the Tribunal pursuant to s.351, would be appropriate in this case, for the following reasons:
a.The evidence before the Tribunal has demonstrated that the applicant holds a Bachelor of Science from Leeds University and is employed as a professional Conference and Event Organiser – ANZSCO: 149311 with the Northern Territory Major Events, whom it is advised will provide Regional Sponsorship through a 494 visa that enables regional employers to address identified labour shortages within their region by sponsoring skilled workers where employers can't source an appropriately skilled Australian worker;
b.The Tribunal notes that the applicant is 30 years of age and as the applicant is a resident of the United Kingdom the applicant meets the English language requirements for the grant of a skilled visa;
c.The applicant has a Bachelor of Science from Leeds University, in the UK. As such, the Tribunal is satisfied that the applicant has qualifications commensurate with the requirements to satisfy the nominated occupation of Conference and Event Organiser – ANZSCO: 149311;
d.The applicant’s knowledge and expertise is in a profession that has a scarcity of skilled professionals, within the Australian Regional environment, and has skills to support a required contribution to the Australian community and the retention of those skills is considered by the Tribunal to be compelling. In this regard, the Tribunal notes that the occupation of Conference and Event Organiser – ANZSCO: 149311 falls within Regional Sponsor skills list;
e.The applicant has been open and honest in her dealings with the Tribunal, and the Tribunal accepts the plight of the applicant, that the training previously undertaken with Definitive Events Pt Ltd has concluded and the applicant has continued to work in the designated occupation since completing her training. The harm that would be inflicted upon the applicants and the Northern Territory concerned, should the applicant not be permitted to remain in Australia, would be detrimental to the contribution the applicant could make to the Australian community with her unique skills and experience;
f.The Tribunal finds that there are strong compassionate circumstances that if not recognised would result in 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. In this regard, the Tribunal accepts that the Northern Territory is a region of Australia that needs skilled professionals to support the community;
g.The Tribunal is satisfied that the application of the relevant Migration legislation will lead to both unfair and unreasonable results for the applicants, unless an opportunity is provided for the applicant’s 494 visa application to be considered by the Department.
Finally, the Tribunal, whilst acknowledging that the discretion solely rests with the Minister in these matters, recommends that the ‘exceptional economic, scientific, cultural and other benefits’ that would result from the applicant being permitted to remain in Australia, with the granting of a 494 visa, are significant for the reasons outlined herein. As such, the Tribunal recommends that the Minister’s discretion should be exercised in this exceptional and worthy case.
Conclusion
The applicant has only sought to satisfy the criteria for a Subclass 407 visa. No claims have been made in respect of the other visa streams, however, evidence was provided that the applicant is currently pursuing a 494 Regional Sponsored Visa. As the requirements that must be met by a person seeking the visa in the 407 Training (Class GF) stream have not been met, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants a Training (Class GF) visas.
Warren Stooke AM
Member

[2022] AATA 1981

29 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction