Picken (Migration)

[2021] AATA 3516

Picken (Migration) [2021] AATA 3516 (1 September 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Christopher Picken

CASE NUMBER:  1833320

HOME AFFAIRS REFERENCE(S):          BCC2017/4918853

MEMBER:Katie Malyon

DATE:1 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 01 September 2021 at 4:47 pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary work (Skilled)) – standard business sponsor stream – position of Cafe or Restaurant Manager – no approved nomination – closure of the 457 visa program – applicant changed employers – COVID-19 travel restrictions – request for Ministerial Intervention – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 48, 65, 140GB, 351, 359
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 October 2018 to refuse to grant the applicant, British national Mr Christopher Picken, a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).  Mr Picken applied for the visa on 22 December 2017.

2. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the applicant to satisfy one of the 2 alternative ‘streams’ for the visa. In the present case, specific claims have been made against cl.457.223(4) of Schedule 2 to the Regulations which applies to sponsorship for employment in an occupation by a standard business sponsor. The provisions of cl.457.223(4) are set out in the Attachment to this decision. No claims have been made in respect of the other stream in cl.457.223, the labour agreement stream in cl.457.223(2) of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on 24 October 2018 on the basis that cl.457.223(4)(a) of Schedule 2 to the Regulations was not met because the nomination for the position of Cafe or Restaurant Manager ANZSCO 141111 made by Mr Picken’s sponsor, Niho Pty Ltd (the Company), was not approved under s.140GB of the Act. A copy of the delegate’s decision was provided to the Tribunal.

4. On 29 July 2021, the Tribunal wrote to Mr Picken inviting him to attend a teleconference hearing on 27 August 2021. Following constitution of the matter to the Member, the Tribunal wrote to Mr Picken on 6 August 2021 pursuant to s.359A of the Act. In its letter the Tribunal noted that, although the Company had applied for review of the delegate’s refusal of its nomination (Tribunal Case No. 1824532), on 1 April 2021 the Tribunal affirmed the delegate’s decision to refuse the nomination.

5. In addition, the Tribunal stated that one of the requirements for grant of a Subclass 457 visa is that a nomination of an occupation in relation to the applicant has been approved under s.140GB of the Act. The Tribunal also noted that the Migration Amendment (Temporary Skills Shortage visa and Complementary Reforms) Regulations 2018 were introduced on 18 March 2018 (the Amending Regulations).  Following introduction of the Amending Regulations, a new application for approval of a nomination in support of grant of a Subclass 457 visa can no longer be made. 

6. The Tribunal observed it appeared the applicant is not the subject of an approved nomination by a standard business sponsor as required by cl.457.223(4)(a) of Schedule 2 to the Regulations and, since 18 March 2018, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made. The Tribunal stated that, if it relies on this information, it may find that Mr Picken is not the subject of an approved nomination and, therefore, he does not satisfy the requirements in cl.457.223(4)(a) of Schedule 2 to the Regulations for grant of the visa.

7. Mr Picken was requested to provide the Tribunal with comments or a response to this information by 20 August 2021. In its letter, the Tribunal advised that, if their comments or response was not provided in writing by 20 August 2021 or, if a request was not made for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking any further action to obtain the information. Further, the Tribunal noted that Mr Picken would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. On 19 August 2021, Mr Picken responded to the Tribunal’s s.359A letter by requesting an extension of time in order to seek legal advice. He acknowledged it appears there is not much that can be done but that he is concerned about the good in this situation having regard to the COIVD-19 pandemic. Mr Picken stated being made to uproot his life at the moment seems almost inhumane as he has lived legally in Australia for almost 7 years.

9. The Tribunal did not grant an extension of time: it did, however, contact Mr Picken to advise him that he could make further submissions at the hearing.  The Tribunal also recommended he immediately seek professional advice.  He was referred to the Tribunal’s website for a link to website of the Office of Migration Agents Registration Authority for details of registered migration agents in Melbourne as well as to the Law Institute of Victoria’s website in the event to seek advice from accredited immigration law specialist.

   Hearing

10. Mr Picken appeared before the Tribunal on 27 August 2021 by way of teleconference to give evidence and present arguments.  

11. At the outset, the Tribunal outlined the information in its s.359A letter. The Tribunal noted it has no discretion and, for the reasons outlined in its s.359A letter, it must affirm the delegate’s decision. Mr Picken confirmed he understood the information set out in the Tribunal’s letter and the consequences for him. He said that he is no longer working with the Company. Rather, he is now working with one of Australia’s largest hospitality business groups, Australian Venue Company (AVC), which operates more than 175 venues across the country thought its multiple businesses.  Mr Picken said one of the companies in the AVC group has given him a contract of employment and the business is interested in sponsoring him.  Having lived in Australia for the past 7 years Mr Picken said he really wants to remain here.  He agreed to provide evidence of the employment offer to the Tribunal. 

12. The Tribunal noted that, having reviewed Departmental records, Mr Picken holds a Bridging A visa (BVA) which continues to have condition 8547 attached to it. This means that he must not be employed by any 1 employer for more than 6 months, without the prior consent in writing of the Secretary (of the Department).  Mr Picken acknowledged the Tribunal’s observation.  He added that he had engaged an immigration lawyer to assist him seek a new BVA and a waiver of that visa condition.  The lawyer told him that his BVA was regranted in February 2021.  Based on its review of Departmental Records, it appears Mr Picken’s BVA was regranted on 3 February 2021: however, condition 8547 continues to be attached to the visa.  

13. In relation to his desire to remain in Australia, Mr Picken said he is aware his current BVA will be valid for only 35 days following the Tribunal’s decision. He added he is heartbroken as the AVC group really wants to keep him working for them, in a management role. Further, Mr Picken said he is aware he cannot apply for another substantive visa whilst remaining in Australia as he is barred by s.48 of the Act from doing so but COVID is presenting travel hurdles such that he cannot leave to apply offshore for a Subclass 482 visa sponsored by a company in the AVC group and then return to Australia.

14. The Tribunal reiterated that it has no discretion and must apply the law. Acknowledging Mr Picken claims to have been offered sponsorship by a company in the AVC group in a management role in Melbourne, the Tribunal raised with him the possibility of a referral to the Minister pursuant to s.351 of the Act. He indicated that would be a desirable outcome and said that he would discuss his options further with an immigration lawyer as well as AVC.

    Documentation lodged after the hearing

15. After the hearing, Mr Picken forwarded to the Tribunal the following:

    1)on 31 August 2021, a letter of offer from Open Door Pub Co Pty Ltd (Open Door Pub) dated 7 September 2021 (sic) offering Mr Picken an appointment in the position of Venue Manager at its Sarah Sands Hotel in Sydney Road, Brunswick (the Letter of Offer); and,

    2)on 1 September 2021, a signed letter from Rachel Checinski, General Manager – Human Resources with Open Door Pub dated 1 September 2021 confirming, inter alia, the company’s intention to nominate Mr Picken for a Subclass 482 visa in the role of Venue Manager at the Sarah Sands Hotel in Brunswick. 

16. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.  For the reasons set out below, the Tribunal has considered if this is an appropriate case to refer to the Minister as requested by Mr Picken. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether Mr Picken meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations.

    Requirement for an approved nomination

18. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

19. As noted above, having reviewed the Department’s records, on 6 August 2021 the Tribunal wrote to Mr Picken pursuant to s.359A of the Act with details of information that is adverse to his review application. The Tribunal stated that on 1 April 2021 the Tribunal affirmed the delegate’s decision to refuse the Company’s nomination of the Company. It also noted that, following introduction of the Amending Regulations, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made. Further, it observed that there is no evidence before the Tribunal which confirms there is any approved or pending nomination relating to him.

20. Having regard to available evidence, the Tribunal finds that the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations are not met.

21. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other stream in cl.457.223 of Schedule 2 to the Regulations, the labour agreement stream, and there is no evidence that Mr Picken would be able to satisfy the specific criteria for that stream. Accordingly, the Tribunal must affirm the delegate’s decision not to grant Mr Picken a Temporary Business Entry (Class UC) visa.

    Is this an appropriate case to refer to the Minister?

22. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal a decision that is more favourable to the applicant if the Minister thinks it is in the public interest to do so.

23. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of the possible exercise of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Further, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power after the Tribunal has made its decision, regardless of whether the Minister is requested to do so by the applicant, or any other person, or in any other circumstances.

24. Guidelines have been issued explaining the circumstances in which the Minister may wish to consider exercising the public interest powers under s.351 of the Act.[1]  The guidelines indicate that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.  The circumstances which, according to the Minister’s Guidelines, may be unique or exceptional include, relevantly, where:

    ·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 (emphasis added).

    [1] Available at >

    The Tribunal takes the issue of recommending referral of any case to the Minister seriously and only after very careful consideration of the matters raised having regard to the Minister’s Guidelines on Ministerial Powers.  It notes that the theme running throughout the Minister’s Guidelines is that the case should involve unique or exceptional circumstances.  They also indicate cases where it would be inappropriate to bring a matter to the Minister’s attention. 

25. The factors which cumulatively engage the Tribunal’s consideration that this may be an appropriate case to refer to the Minister are as follows:

    ·Because Mr Picken’s Subclass 457 visa application has been refused, he is precluded by s.48 of the Act from being able to apply for a Subclass 482 visa whilst remaining in Australia.

    In her signed letter of 1 September 2021, the General Manager of Human Resources with Open Door Pub, Ms Rachel Checinski, confirms that it is the Open Door Pub’s intention to nominate Mr Picken for a Subclass 482 visa in the role of Venue Manager.  It is Ms Checinski who has also signed the Letter of Offer which offers Mr Picken the position of Venue Manager with Open Door Pub.

    But for the travel restrictions arising from the COVID-19 pandemic, Mr Picken told the Tribunal he would leave Australia to lodge his Subclass 482 visa application offshore. 

    The Tribunal notes the Commonwealth Government has recognised the inflexibility of the Regulations regarding the Schedule 2 criteria for a range of visas arising from the impact of travel restrictions in response to COVID-19. By way of example, the Government introduced the Migration Amendment (2021 Measures No. 1) Regulations 2021 (the 2021 Amending Measures Regulations) which amend the Regulations effective 27 February 2021. The Amending Measures Regulations facilitate, inter-alia, onshore grants of Subclasses 101 (Child), 102 (Adoption), 124 (Distinguished Talent), 300 (Prospective Marriage), 309 (Partner (Provisional)) and 444 (Dependent Child) visas. Prior to the introduction of these amendments, it was necessary for the grant of these visas that the applicant be offshore.

    The Explanatory Statement accompanying the 2021 Amending Measures Regulations confirms the instrument makes amendments, inter-alia, to assist certain visa applicants and holders ‘adversely impacted by COVID-19’. In the Tribunal’s opinion this recognises that the current COVID-19 travel restrictions are not only circumstances which are not anticipated by the relevant legislation but also that application of the Regulations leads to unfair results in some cases.

    The Tribunal acknowledges that the 2021 Amending Measures Regulations is merely one of a suite of the Commonwealth Government’s regulatory changes which recognises the adverse impact on some visa applicants of otherwise inflexible provisions in the Regulations in the context of the circumstances presented to applicants by the COVID-19 pandemic. In addition to the 2021 Amending Measures Regulations, the suite of other regulatory changes to date include the:

    oMigration Amendment (COVID-19 Concessions) Regulations 2020 which includes amendments to assist certain temporary and provisional visa holders, including individuals who are on a pathway to permanent residence, who are disadvantaged by the consequences of the COVID-19 pandemic;

    oHome Affairs Legislation Amendment (2020 Measures No. 2) Regulations 2020 which provides concessions to certain applicants for Working Holiday visas, restructures and streamlines Distinguished Talent visas and amendments consequential to the Migration Amendment (COVID-19 Concessions) Regulations 2020 for skilled visas; and, 

    oMigration Amendment (Temporary Graduate Visas) Regulations 2020 which provides: power to specify legislative instrument geographical areas in 2 categories and assess second Subclass 482 visa applications in the Post-Study Work stream; and, clarifies the operation of the concession from the Migration Amendment (COVID-19 Concessions) regulations 2020 by reinstating the need for offshore applicants to have held an eligible Student visa.

    It appears to the Tribunal that the circumstances presented by Mr Picken’s case are unique and exceptional because of the combined impact of s.48 of the Act precluding his lodgement of a Subclass 482 visa whilst in Australia as the holder of a valid BVA and the fact that, due to travel restrictions arising from COVID-19, he has limited options to leave Australia to validly lodge such an application offshore. There is no suggestion that Australia’s national border closure will be lifted in the near future.

    ·Mr Picken has lived in Australia since November 2014 and, as such, has a strong connection with Australia having been here for most of his adult life.  The Letter of Offer confirms he has been offered a salary of $93,500 per annum including superannuation for the position of Venue Manager.  As such, it appears he is a valued employee of the AVC group of companies.  The Tribunal accepts that the accommodation and food services industry has been the hardest hit by the COVID-19 pandemic with a 35% drop in payroll jobs.[2]  It also accepts that a strong hospitality industry will contribute to revival of the Australian economy post COVID-19.[3]

    In her letter dated 1 September 2021, Ms Checinski states that Mr Picken has been with the AVC group of companies since 1 April 2019 and has been employed on a full-time basis in the position of Venue Manager.  She notes that COVID-19 has had a significant impact on the hospitality industry and made it extremely difficult to fill hospitality roles, especially in management.  In her opinion, Mr Picken’s role is critical for business output and it would be challenging to operate the Sarah Sands Hotel in Brunswick without him. 

    [2]

26. However, against the factors outlined above which engage the Tribunal’s consideration that this is an appropriate case to refer to the Minister, it notes the following:

    ·no evidence has been provided that AVC, Open Door Pub or any of the other companies in the AVC group is currently an approved business sponsor;

    ·the Letter of Offer provided to the Tribunal has the following shortcomings:

    oreference is made to an attached position description for the role of Venue Manager but no such attachment has been provided to the Tribunal.  In the circumstances, it is not clear to the Tribunal whether the nominated position of Venue Manager is that of Hotel Manager ANZSCO 141311, Hospitality, Retail and Services Manager ANZSCO 149999 or some other occupation such as of the occupation that the Company nominated him for, Cafe or Restaurant Manager ANZSCO 141111;

    onotwithstanding the offer of employment with Open Door Pub is conditional upon approval of ‘the visa’, the Letter of Offer not been signed by Mr Picken as evidence of his acceptance of the offer; and,

    oalthough the Letter of Offer is dated 7 September 2021 it was received by the Tribunal on 31 August 2021 and, as such, its probity is questionable.  The Tribunal acknowledges Ms Checinski refers in her letter of 1 September 2021 to the Letter or Offer and, as such, it may be that the date in the Letter of Offer is merely a typographical error;

    ·no evidence has been provided regarding the impact, if any, of the relevant inapplicability condition/s or caveats set out in IMMI 19/048 on the occupation to be nominated by Mr Picken’s proposed sponsor in respect of a Subclass 482 visa for him;

    ·no evidence has been provided to confirm that Mr Picken has complied fully with the conditions attached his former Working Holiday Subclass 417 visas and subsequent BVAs; and,

    ·while the Tribunal accepts Mr Picken has worked with the AVC group of companies for some time at various locations and is a valued employee, no evidence has been provided to confirm that Mr Picken has the skills, qualifications and experience to undertake the role Venue Manager as set out in ANZSCO for the nominated occupation .

1. On balance, the Tribunal has decided that this is not an appropriate case to refer to the Minister. However, it remains open to Mr Picken and Open Door Pub (or another of the related entities in the AVC group of companies as an approved standard business sponsor who Ms Checinski has indicated it will lodge a nomination application in respect of Mr Picken) to apply to the Minister. It notes further documentation may be provided in support of such an application to the Minister including evidence referred to immediately above at para [27].

   DECISION

2. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

   Katie Malyon

   
   Member

   ATTACHMENT - Extracts from the Migration Regulations 1994

   Schedule 2 Part 457

   …

   Standard business sponsorship

   …

   (4)The applicant meets the requirements of this subclause if:

   (a)each of the following applies:

   (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii)    the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii)   the approval of the nomination has not ceased as provided for in regulation 2.75; and

   (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

   (ba)either:

   (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

   (ii)    each of the following applies:

   (A)the applicant is employed to work in the nominated occupation;

   (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

   (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

   (d)the Minister is satisfied that:

   (i)    the applicant’s intention to perform the occupation is genuine; and

   (ii)    the position associated with the nominated occupation is genuine; and

   (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

   (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

   (eb)if:

   (i)    the applicant is not an exempt applicant; and

   (ii)    subclause (6) does not apply to the applicant;

   the applicant:

   (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

   (v)   achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

   (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

   (f)either:

   (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

   (ii)    it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

   …

   (6)This subclause applies to an applicant if:

   (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

   (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

   …

   (11)In subclause (4):

   exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

   oOOo