Rimsa (Migration)

Rimsa (Migration) [2019] AATA 6673 (1 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Sarunas Rimsa
Mrs Jurate Rimsiene
Miss Monika Rimsaite
CASE NUMBER:  1902539
HOME AFFAIRS REFERENCE(S):          BCC2016/4241208
MEMBER:Katie Malyon
DATE:1 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 01 November 2019 at 4:31 pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Building Associate – subject of an approved nomination – nomination refused – unique or exceptional circumstances – exceptional economic and scientific benefit – Construction Project Manager – occupation in high demand in NSW – employer’s commitment to Research & Development – significant contributor to the development of intellectual property – unfair or unreasonable results – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223
CASES
Singh v MIBP [2017] FCAFC 105
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 29 January 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 15 December 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.
Background
In the present case, the first named applicant - Lithuanian national Mr Sarunas Rimsa - is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Building Associate ANZSCO 312112.
The delegate refused to grant the visas on the basis Mr Rimsa did not meet cl.186.223(2) of Schedule 2 to the Regulations because the nomination application made by his employer National Geotechnical Consulting Pty Ltd T/A National Geotechnical Consulting (the Company) was refused. The applicants sought review of the delegate’s decision to refuse the application.
On 25 February 2019, the Tribunal wrote to the applicants informing them that is a requirement for grant of a Subclass 186 visa that the nomination identified in their visa application has been approved. The Tribunal observed that the Company had not sought review of the decision to refuse its nomination and, in these circumstances, the decision to refuse to grant the applicants a Subclass 186 visa must be affirmed. It noted that even lodgement of a new nomination will not enable the applicants to meet criteria for the visa. The Tribunal invited the applicants to inform it if their circumstances have changed and they no longer wish to continue with the application for review.
The applicants’ representative responded on their behalf on 11 March 2019. The representative notes that Mr Rimsa has a Master of Mechanical Engineering and a Master of Laws. Further, his wife - the second named applicant, Mrs Jurate Rimsiene - has a Master of Economics (Accounting) and a Master of Engineering (Telecommunications). The couple’s daughter - the third named applicant, Miss Monika Rimsaite - completed the High School Certificate in NSW in 2017 and is awaiting grant of permanent residence to her father before applying to attend university in Australia.
The representative notes that the family came to Australia in December 2011. And, while Mrs Rimsiene completed an English course and then a Certificate IV plus Advanced Diploma in Accounting, Mr Rimsa was employed as a labourer and then later as a Supervisor and Operator with a construction company, MacDonald Sheet Piling Pty Ltd (MacDonald Sheet Piling), owned and operated by Mr Grant MacDonald. Subsequently, the applicants were all granted Subclass 457 visas on 28 November 2014 after Mr Rimsa was sponsored by another of Mr MacDonald’s companies, MacManage Pty Ltd (MacManage). However, MacManage was placed in liquidation in 2016 and so Mr Rimsa was offered a position with the Company as Construction Supervisor. The Company is also owned and operated by Mr MacDonald. He worked full-time with the Company from 29 April 2016 to 6 February 2017. It was during this time that the applicants applied for their Subclass 186 visas nominated by the Company. However, in 2017, the Company went into liquidation and Mr Rimsa was offered the position of Construction Supervisor with related entity, FEA Role Forming Pty Ltd (FEA Role Forming). He worked with FEA Role Forming from 6 February 2017 until April 2018. In April 2018, Mr MacDonald informed Mr Rimsa that FEA Role Performing too would be placed in liquidation. This prompted Mr Rimsa to find a new job.
On 23 April 2018, Mr Rimsa signed a contract with Meso Solutions Pty Ltd (Meso Solutions) as a Construction Supervisor. The contract provides for payment of a base salary of $94,000 per annum excluding overtime and superannuation. In total, Mr Rimsa’s salary package with Meso Solutions is approximately $120,000 per annum.
By way of final comment, the representative notes that, if the decision under review is affirmed, Mr Rimsa will make a request to the Minister under s.351 of the Act based on his long-term residence and significant contribution to the Australian economy in a skilled occupation.
The Tribunal’s s.359A letter
On 2 April 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on, or respond to, information which would, subject to their comments or response, be the reason or a part of the reason, for affirming the decision under review to refuse his Subclass 186 visa application. The Tribunal informed the applicants that their visa application had been refused by the delegate because the Company’s nomination was refused and, further, the Company had not applied to the Tribunal for review of the delegate’s decision to refuse the nomination. Accordingly, there is no approved nomination by the Company in relation to them. As a result, the position to which the applicants’ Subclass 186 visa application relates cannot meet the criteria in cl.186.223 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singhv MIBP [2017] FCAFC 105, this is a ‘once off’ process.
In its s.359A letter, the Tribunal requested the applicants provide any comments or response to the information in the Tribunal’s letter on or before 16 April 2019. The applicants’ representative responded to the Tribunal on 16 April 2019 noting the information provided by the Tribunal in its s.359A letter appears to be correct. He also confirmed that the applicants would welcome the opportunity to give evidence and present arguments at hearing. As the applicants responded to the Tribunal’s s.359A letter within the permitted timeframe, the Tribunal invited them to attend a hearing.
Hearing
The applicants were originally invited to attend a hearing on 6 May 2019. The hearing was scheduled to be one of a number of matters heard in a Multiple Application Hearing List (MAHL) in which all applicants have had their visa application refused because of the absence of an approved nomination. The representative advised the Tribunal that, in his opinion, inclusion of the applicants’ matter in a MAHL was inappropriate and, accordingly, he requested the hearing of the matter be rescheduled. The Tribunal agreed to this request and scheduled a hearing on 9 May 2019.
Prior to the hearing, the representative lodged a letter from the Managing Director of Meso Solutions, Mr Tim Orr, dated 7 May 2019. In his letter, Mr Orr provides extensive information in relation to the activities of Meso, the size of its operations and its engagement of Mr Rimsa. Mr Orr’s letter is discussed further below at para [16].
The applicants appeared before the Tribunal on 9 May 2019 to give evidence and present arguments. The Tribunal also took evidence from Tim Orr, the Managing Director of Meso. The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.
Evidence of Mr Orr
In his letter dated 7 May 2019 referred to above it para [14] above and as echoed in his oral evidence to the Tribunal, Mr Orr states that:
1)Meso Solutions was established just 3½ years ago (in March 2016) in response to requests from a number of builders to assist with their groundworks. Previously, he managed a company that undertook sheet piling and anchoring.
In the financial year ended 30 June 2018, Meso Solutions’ turnover was $7.6 million notwithstanding the difficult trading environment that the construction industry experienced in following the Banking Royal Commission in November 2017 as a result of which many banks stopped lending to developers: they were seen as too risky. But for that, he expects revenue for the year ended 30 June 2018 would have been in the order of $10 million.
However, based on current figures, turnover of the ended 30 June 2019 is expected to be up to $12 million since, more recently, banks have started to relax their former controls and things have started to improve again. Only about 20% of Meso Solutions’ work is government work, the rest is private sector work. Prior to the slowdown, the company was going 50% per annum and, now that banks have started lending again, revenue growth is expected to return to normal and increase by 50% year on year.
The company’s growth in revenue is despite no marketing program since all work comes from referrals. Meso Solutions’ employs 28 staff, none of whom are casual and all but 2 of whom are either Australian citizens or permanent residents.
2)Meso Solutions specialises in the development, design and placement of temporary and permanent earth retention and load-bearing systems.
Groundworks is a specialist area of the construction industry which typically represents the greatest risk of adverse and unforeseen issues. These risks have been further exacerbated by the strong trend towards infill developments which incorporate even deeper excavation near to other structures. Compounding this, is the trend of construction companies to focus on specialist elements of the works. To achieve success, these streams must be integrated effectively: however, the majority of builders do not have the expertise or experience to do this.
Meso Solutions has deliberately taken a different approach. It chose to develop capabilities in the design and placement of steel sheet piles to retain soils as, in most ground conditions short of rock, these can be displaced far more quickly and cost effectively with a more certain outcome. To complement the sheet piling, Meso Solutions has developed a unique earth anchoring system which achieves productivity that is often several times greater than that of any other system.
Meso Solutions has also developed a deep-well dewatering system to manage groundwater and a light-weight aluminium formwork system to place permanent basement walls at a rate of twice that of any other formwork system.
3)To achieve its growth, Meso Solutions has developed strong relationships with other companies that complement its capabilities – both in design and execution – so that it can bring to bear all of its capabilities to ensure that the best outcome can be achieved. The approach of Meso Solutions is always to determine the outcome being sought and then advise clients on this, rather than the usual industry approach of just responding to a tender.
4)The key to Meso Solutions’ success is its engaged people. All employees - ranging from 20 to 73 years of age - are encouraged to act like they own the company and challenge everything that is done, by everyone. Mr Orr emphasised this during the course of the hearing. He explained this is achieved by consistently questioning whether there is a better way of doing each thing an entirely different way: further, everyone is heard and there are no bad ideas.
5)Because everyone is heard, Mr Orr said that Meso Solutions has a very aggressive system and process development culture. He explained this has been recognised by the fact that, over the past 2 years, AusIndustry has accepted Meso Solutions has invested over $5.7 million in Research and Development (R&D).[1] AusIndustry is the specialist business program delivery division in the Commonwealth Government’s Department of Industry, Innovation and Science. It delivers programs for businesses and individuals worth around $2 billion per year including innovation grants, clean technology, tax incentives, duty concessions, small business development, industry support and venture capital.
Asked during the course of the hearing whether Meso Solutions has received any awards for its entrepreneurial work in achieving significant revenue within such a short period of time, Mr Orr said that he has simply not had time to pursue such recognition.
6)Mr Orr met Mr Rimsa more than 7 years ago when he was managing the Sydney operations of MacDonald Sheet Piling, the company that originally employed Mr Rimsa. Mr Orr said he had a massive falling out with the owner (Mr MacDonald) and left. However, during his time with the company, he observed that Mr Rimsa had an unusually perceptive approach to his work and considered each element deeply to understand how all elements fitted together.
During the course of the hearing, Mr Orr said that Mr Rims is exceptional in his approach to every problem. Unlike most people in the construction industry, Mr Rims brings his experience both as a highly educated Engineer and a Lawyer to think things through in a truly unique and esoteric way.
Over the years, Mr Rimsa had developed the skill to place steel sheet piles in the ground using an excavator and there are not many operators who can do this safely or efficiently: driving a sheet vertically into the ground is an extremely difficult thing to do from an excavator.
In addition, Mr Rimsa proved adept at interpreting complex plans and completing the often complex site records required to fully document these activities. This unusual aptitude may has not doubt been assisted by his education both as an Engineer and a Lawyer in Lithuania.
7)When he started Meso Solutions, Mr Orr recognised that he needed operators who could place sheet piles using an excavator. As there are few such operators with this skill and experience, he tried many who claimed they were competent but found they were wanting (skills). As a result, he was able to employ only 2 such people. At the time, he tried to employ Mr Rimsa but he was employed by his sponsor, the Company, which had nominated him for permanent residence. However, when the Company closed down Mr Rimsa’s moved to work with related entity FEA Role Forming but that was short lived and so Mr Rimsa joined Meso Solutions.
Mr Rimsa fitted the culture perfectly and has been an outstanding staff member. He is now one of the key operators and, further, fulfils the role regularly as Site Supervisor. He has also shown that he can contribute to the development of Meso Solutions’ other systems, consistent with Mr Orr’s expectations.
It is Mr Orr’s opinion that Mr Rimsa is not taking a job from an Australian citizen or permanent resident. He would employ another operator skilled in the placement of sheets immediately if he could identify such a person in addition to Mr Rimsa. He confirms having certainly tried to do this, multiple times.
8)It would be a huge blow to Meso Solutions if it should lose Mr Rimsa as the business would find it very difficult to replace him. And, in any event, any such process would take many, many, many months. Mr Orr is willing to sponsor Mr Rimsa formally if this is required.
[1] >
Mr Orr told the Tribunal about the work that Mr Rimsa does for his company. He explained that Mr Rimsa has a specialist role of placing sheets on the ground but he is also responsible for running multiple sites. Having reviewed the position description the subject of the nomination by the Company and without the benefit of having a position description in relation to the work undertaken by Mr Rimsa for Meso Solutions, the Tribunal asked Mr Orr whether the Mr Rimsa’s work might be classified as Construction Property Manager. It noted that this occupation is recognised in the NSW Subclass 190 Priority Skilled Occupation List as an occupation in high demand in NSW. Mr Orr told the Tribunal that Mr Rimsa is currently engaged as a Construction Project Manager with Meso Solutions. He supervises work across 4 - 5 sites and has, in his time with Meso Solutions, helped develop an anchor which, in Mr Orr’s opinion, is unique in the world.
Asked whether Meso Solutions has sought advice in relation to securing trademarks or patents for its processes such as the anchor which he considers to be unique in the world, Mr Orr said he is currently exploring this but he has just been too busy to pursue the matter further. He added that he advertised for the position of an in-house lawyer in 2018 with a view to registering trademarks and patents in relation to Meso Solutions’ unique anchoring system. Mr Orr said he has done this before but it takes a lot of input from the business itself. The in-house lawyer position did not proceed so he is currently in the process of speaking with a patent attorney. As a result of the anchoring process developed, construction work can proceed 2 - 3 times more quickly. Mr Orr said he also has a flooring system that is unique. The Tribunal noted that, in the context of any potential referral to the Minister pursuant to s.351 of the Act, it would be beneficial to provide evidence of discussions with patent attorneys in relation to securing patents and/or trademarks for the Meso Form, the Meso Earth Anchoring and the Meso Stabilisation Peer.
Evidence of Mr Rimsa
Mr Rimsa provided a detailed personal biography to the Tribunal at the hearing.
At the outset, Mr Rimsa told the Tribunal that he came to Australia as a dependent on his wife’s Student visa. He found work with a construction business which, after he had been with them for a little while, agreed to sponsor him on a Subclass 457 visa. He was very happy when the Company agreed to sponsor him and, then, 2 years later it nominated him for permanent residence. However, just 2 months after the permanent residence application was lodged, he was told by the owner of the Company, Mr MacDonald, that the business would be liquidated as it had too many debts. That’s when he changed to work with related entity, FEA Roll Forming. However, that position only lasted until March 2018 when that company, too, stopped trading.
Mr Rimsa said it was then that he approached Mr Orr to see if his new company, Meso Solutions, was looking for staff. The answer was positive and so he started working with Meso Solutions. He realises now that, as he is more than 50 years old, he cannot apply for permanent residence nominated by Meso Solutions. Mr Rimsa added that, having lived his dream and arrived in Australia in December 2011, his family has lived at only one place in Cronulla since their arrival and he feels he can’t go back to Lithuania. Refusal of the family’s permanent residence application has destroyed their lives.

Asked by the Tribunal as to why he could not return to Lithuania, Mr Rimsa said all his life is here, his social life, his (immediate) family are here in Cronulla. He added that his family have all adapted well to the Australian culture and enjoy their life here. Mr Rimsa said that returning to Lithuania now would be going backwards. He explained that in the last decade the population has dropped from 3.5 million to 2 million following huge emigration to other countries. Whole buildings and schools have been closed. He has achieved more in the last 3½ years with Meso Solutions than his entire 30 years working in Lithuania.
During the course of the hearing, the Tribunal put to Mr Rimsa the information outlined in its s.359A letter referred to above at paras [11] – [12]. He acknowledged the Tribunal’s observation that, absent an approved nomination by the Company, it must affirmed the delegate’s decision. When asked by the Tribunal regarding the representative’s request to refer the matter to the Minister to exercise powers under s.351 of the Act, Mr Rimsa acknowledged this may well be the option.
Evidence of Mrs Rimsiene
Miss Rimsiene told the Tribunal that she worked as an Accountant with the Government in Lithuania in auditing and then she ran her own accounting business. Subsequently, she worked as a Manager at a motel. Asked about family members in Lithuania, she told the Tribunal that her father became sick and has since died.
In her time in Australia, Mrs Rimsiene said she has volunteered at the Cronulla Art Theatre. She has been involved in ticket sales and working in the library. She added that she would like to remain in Australia to forward a better life for her children.
Mrs Rimsiene provided a detailed personal biography to the Tribunal at the hearing. She also provided a copy of her Advanced Diploma of Accounting issued by Australian Institute of Professional Education dated 30 January 2015. She told the Tribunal she had been actively involved with the Arts Theatre Cronulla, a division of the School of Arts Cronulla.
After the hearing, the Tribunal notes that the representative provided a reference letter from the Arts Theatre Cronulla’s Stage Manager and Props & Wardrobe Manager, Melie Bookluck dated 14 May 2019. The letter confirms evidence from Mrs Rimsiene regarding her contribution as a volunteer to the community theatre.
Evidence of Miss Rimsaite
Miss Rimsaite told the Tribunal that she never expected to be an immigrant. Her parents left Lithuania in 2011 when she was still in high school studying the International Baccalaureate. She came to Australia after turning 18 to join her parents and finish her education here. Initially, she planned to attend university but that proved too expensive as an international student. Miss Rimsaite secured a Student visa and enrolled in an Advanced Diploma in Marketing at the Australian Institute of Professional Education and graduated in 2014.
After her father was sponsored by the Company, Miss Rimsaite told the Tribunal that she has was accepted to do a Bachelor of Civil Engineering at the University of Wollongong. However, she did not proceed due to the high cost of international student fees. In 2015, she enrolled in an advanced diploma of Industrial Design at Enmore TAFE and graduated in 2017 with the TAFE Excellence Achievement Award. Miss Rimsaite said she is hopeful of finding work in the highly competitive design area. She is looking to do a Bachelor of Product Design at the University of Technology in Sydney. Miss Rimsaite told the Tribunal that, during the course of her industrial design course at TAFE she created a number of objects including a magazine rack which was chosen to be included in the 50 Australian designers’ models at the Workshopped Exhibition 2016 at the Australian Design Centre.[2] She applied successfully to enrol in a Bachelor of Product Design at the University of Technology Sydney with a view to commencing studies in 2019. However, after the family’s application for permanent residence was refused, the cost of attending university was beyond her and her family so she was not able to accept the offer. A copy of UTS’s offer letter was provided to the Tribunal.
[2] Workshopped is an annual exhibition for designer works that cover products, furniture and lighting: >
In relation to work experience to date, Ms Rims said that for 6 years she has worked with the Clifford Wallace Agency (CWA), most recently as Office Co-ordinator and Client Liaison. CWA employs about 800 staff and is the main supplier of hospitality staff – including waiters, barristers, bartenders, chefs, kitchen hands, receptionists, AV staff – for Sydney’s premier event companies, venues, caterers and boardrooms. Miss Rimsaite said that the company has recently relocated its officers from Bathurst Street in the CBD to Surrey Hills. She was responsible for creating the marketing plan training areas. Since September 2018, she has been working as a Dental Assistant and assisted with marketing for a dental practice based in Cronulla.
Miss Rimsaite provided a detailed personal biography to the Tribunal at the hearing. In addition to setting out the information discussed above, the Tribunal notes Miss Rimsaite’s biography confirms that she represented Lithuania in the National Girls Water Polo Team. In addition to participating in national competitions, she represented Lithuania at international competitions in Belarus, Ukraine and Latvia. Miss Rimsaite also provided details of her career as Senior Event Supervisor with the Clifford Wallace Agency including supervising events such as the New Year’s Eve cocktail party and dinner for up to 800 people at the Sydney Opera House 2016 and 2017 and the St George Open Air Cinema 2017 and 2018, amongst others.
After the hearing, the Tribunal notes that the representative provided a letter from Christopher Foster, Director of CWA, dated 31 May 2019 confirming Miss Rimsaite’s oral evidence to the Tribunal regarding her employment by CWA.
Documentation lodged after the hearing
After the hearing, the representative forwarded a considered and detailed submission dated 31 May 2019 addressing the unique and exceptional circumstances as to why the Tribunal should refer the matter to the Minister pursuant to s.351 of the Act. By way of brief overview, the representative submits that the grounds for the Minister to intervene are:
· exceptional economic and scientific benefit would result from Mr Rimsa being permitted to remain in Australia; and,
· application of relevant legislation leads to unfair results in his case.
In addition, the representative submits that, in the case of Mrs Rimsiene and Miss Rimsaite, their positive contribution already made to Australia and their potential for future contributions made are positive factors in favour of the Minister exercising his power under s.351 of the Act
The representative’s letter is supported by multiple documents in relation to Meso Solutions and Mr Rimsa as follows:
1)position description for Manager Site Coordination (Construction Manager);
2)signed letter of offer from Meso Solutions addressed to Mr Rimsa for the position of Construction Supervisor dated 26 April 2018;
3)Contract of Employment;
4)Organisational Chart for Meso Solutions;
5)Financial Report for Meso Solutions for the year ended 30 June 2018;
6)Strategic Overview for Meso Solutions dated 5 May 2019;
7)Staff summary with employees names, position title and immigration status;
8)R&D Application for year ended 30 June 2017 showing R&D claim by Meso Solutions of $1,598,553;
9)R&D Application for year ended 30 June 2018 showing R&D claim by Meso Solutions of $3,602,480
10)Registration notification issued to Meso Solutions from the Commonwealth’s Department of Industry, Innovation and Science dated 19 March 2018;
11)Registration notification issued to Meso Solutions from the Department of Industry, Innovation and Science dated 8 April 2019;
12)Income Tax Return for year ended 30 June 2017 confirming Meso Solutions’ R&D claim of $1,598,553 and tax refund due of $143,097.01;
13)Income Tax Return for year ended 30 June 2018 confirming Meso Solutions’ R&D claim of $3,602,480 and tax refund due of $867,262.80; and,
14)Australian Taxation Office (ATO) income tax refund summary showing refunds to Meso Solutions for years ended 30 June 2017 and 30 June 2018.
In addition, the representative also provided the following documentation in relation to Mrs Rimsiene and Miss Rimsaite respectively:
1)letter from Ms Meile Bookluck of the Arts Theatre Cronulla dated 14 May 2019; and,
2)letter from Mr Christopher Foster, Director of Clifford Wallace Agency dated 31 May 2019.
The documentation provided by the representative in relation to Meso Solutions is discussed further below at paras [51] – [60].
For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. However, for reasons outlined below, the Tribunal has determined that this is an appropriate case to refer to the Minister pursuant to s.351 of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The preliminary issue in the present case is whether primary visa applicant Mr Rimsa is the subject of an approved nomination as required by cl.186.223(2) of Schedule 2 to the Regulations.
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 Company’s nomination application was refused by the Department and, subsequently, it did not seek review in the Tribunal. In the circumstances, as the nomination application made by the Company for the position of Building Associate to which Mr Rimsa’s Subclass 186 visa application relates has not been approved, it follows that he does not meet the criteria in cl.186.223(2) of Schedule 2 to the Regulations. Therefore, cl.186.223 of Schedule 2 to the Regulations is not met.
Mr Rimsa 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 in Part 186. 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.
The applications of Mrs Rimsiene and Miss Rimsaite are based on their being members of the family unit of a person who meets the primary criteria. As Mr Rimsa does not meet the primary criteria, the other applicants do not meet criteria for the grant of the visa. Accordingly, the Department’s decision to refuse the applications of the second named applicant and the third named applicant must also be affirmed.
Is this an appropriate case to refer to the Minister?
Having found that the delegate’s decision must be affirmed because Mr Rimsa cannot meet cl.186.223 of Schedule 2 to the Regulations, the next issue for the Tribunal to consider is whether this is an appropriate case to refer to the Minister as requested.
As noted above, the Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so consistent with s.351 of the Act,.
The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use 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. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.
The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.[3] The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances (emphasis added). The circumstances which may be unique or exceptional in this case include, relevantly:
·exceptional economic, scientific, cultural or other benefit would result from the review applicant being permitted to remain in Australia; and,
·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).
[3] >
The Tribunal takes the issue of recommending referral of any matter to the Minister seriously. It notes that the theme running throughout the relevant Ministerial Guidelines on this matter is that the case should involve unique or exceptional circumstances. The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention.
The applicants have, through their representative, provided evidence to the Tribunal regarding the basis of their request for referral to the Minister, not only from the applicants themselves but also from Mr Orr, which address the circumstances outlined in the Minister’s guidelines extracted above. The submissions and supporting documentation have been provided by the representative in his letter of 15 May 2019.
First, exceptional economic and scientific benefit would result from Mr Rimsa being permitted to remain in Australia.
The representative submits that Mr Rimsa’s occupation could be characterised as one of the occupations included in the NSW Priority Skilled Occupation List for 2019 for Skilled Nominated Subclass 190 visas.[4] He submits that the position description of the Mr Rimsa’s occupation as set out in the contract of employment with Meso Solutions appears similar to many of the tasks of a Construction Manager ANZSCO 1331. Relevantly, the position description for a Construction Project Manager ANZSCO 133111 states:
Plans, organises, directs, controls and coordinates construction of civil engineering and building projects, and the physical and human resources involved in the construction process. Registration or licensing is required.[5]
Further, the representative notes the registration and licensing referred to in the ANZSCO extract above relates to the requirements in the construction industry such as OH&S Construction Induction, National Licence to Perform High Risk Work, Verification for Competence as an Excavator, and Working Safely at Heights. The representative confirms that Mr Rimsa holds each of these registration/licenses and provided copies to the representative.
[4] industry.nsw.gov.au/live-and-work-in-nsw/visas-and-immigration/nsw-skilled-occupations-list/nsw-190-priority-skilled-occupation-list
[5] abs.gov.au/ausstats/[email protected]/Latestproducts/58D5818634DF4E90CA257B95001310CE?opendocument
In addition, the representative notes the occupation of Construction Project Manager ANZSCO 133111 is listed on the Medium and Long-term Strategic Skills List (MALTSOL).[6]
[6] >
The representative submits that the inclusion of Mr Rimsa’s occupation on both the list of occupations in demand in NSW and on the MALTSOL strengthens Mr Rimsa’s claims of the unique and exceptional circumstances applicable in his case for the purposes of the Minister’s powers in s.351 of the Act.
Furthermore, the representative notes that Meso Solutions has provided evidence that 24 of its 26 employees are Australian citizens or permanent residents. In the circumstances, he submits that Mr Rimsa’s work with the company contributes to the ongoing employment of many Australian employees. The Tribunal has been provided with financial documentation in relation to Meso Solutions including: the Financial Report for the year ended 30 June 2018; Company Tax Returns for the years ended 30 June 2017 and 30 June 2018 as lodged with the ATO; R&D Applications for years ended 30 June 2017 and 30 June 2018 showing R&D claims totalling $5,201,033; and, Registration notifications from the Commonwealth’s DIIS dated 19 March 2018 and 8 April 2019. Documentation provided confirms income has increased as follows:

FY ended 30 June Income Profit

2017 $5,673,837 $1,654,354

2018 $7,474,115 $4,604,369

The representative submits that Meso Solutions’ steady increase in turnover and profitability confirms the business clearly has the capacity to pay the salary of Mr Rimsa. It is also relevant to the circumstances of this case because the representative submits that if Meso Solutions was eligible to nominate Mr Rimsa under the Employer Nomination’s Scheme, that nomination would be approved: it is merely Mr Rimsa’s age that precludes the success of such a process.

The representative also submits that documents relating to Research & Development confirm not only the business’ commitment to innovations in the construction industry which have generated income for the business and its Australian employees to date but also which will potentially generate export income in the future. He notes that Mr Orr gave evidence to the Tribunal that Mr Rimsa has been an important and invaluable contributor to 2 of the business’ systems, namely, the Meso Form and Meso Earth Anchoring. The representative notes Mr Orr’s intention, as discussed during the hearing, to contact a patent attorney with a view to securing patents for its unique systems.
In addition, the representative notes the purpose of the Employer Nomination Scheme is set out in PAM3 under the heading 4.1 Strategic Context which states:
The Employer Nomination Scheme (ENS) allows employers to sponsor foreign
workers for permanent residence to feel genuine vacancies in their business.
Employer-sponsored visas are highly responsive to labour market presses and
well-suited to addressing the short – 2 – medium term demand for specific skills, recognising that training Australian workers takes time.
The Tribunal acknowledges the representations made by the representative. In addition, the Tribunal also notes the Strategic Overview in relation to Meso Solutions provided by the representative after the hearing identifies the recent trend towards increasing specialisation among some contractors and builders such that in-ground works - particularly those on previously built-sites which is now increasingly the trend, especially in areas approximate to public transport corridors - often throw up unexpected challenges and issues. By specialising in more in-ground works in a single year than typical builders would experience in a career, the business has identified its clearly unique skill-set and an opportunity in the market.

The Strategic Overview set out details in relation to Meso Solutions’ current and developing capabilities in design and certification, sheet piling, anchoring, dewatering and concrete walls working with related entities Meso Design and Meso Equipment. It also articulates the likely establishment of an intellectual property branch of the business, Meso Design, to own and manage the intellectual property of Meso Solutions. With this in mind, it in the process of securing names for Meso Seal (the negative membrane system developed by Meso Solutions), Meso Barrier (its ground injection system) and Meso Form (its lightweight formwork system). The Strategic Overview also recognises the strategic need to develop such systems having regard to coastal erosion, rising sea levels and flood mitigation.
As explained by Mr Orr during the course of the hearing, Mr Rimsa has been a significant contributor to the development of the intellectual property of Meso Solutions and, hence, the desire of the business to continue his employment in Australia.
Second, the representative notes that the combination of changes to the ENS program with age limitations as well as the liquidation of the Company meant that Mr Rimsa could not restart the process of acquiring relevant work experience with his current employer. Essentially, these were factors beyond Mr Rimsa’s control and, as such, the application of relevant legislation leads to unfair or unreasonable results in a particular case. The representative submits that, despite this, Mr Rimsa has shown considerable resourcefulness by finding another employer which has offered him a genuine position on the MALTSOL and which cannot be filled by an Australian employee. He submits that allowing Mr Rimsa to continue residing in Australia and working with his current employer is consistent with the overall objectives of the ENS program.
Consideration
Having considered the representative’s submissions and the extensive documentation provided in support of the request for referral to the Minister, the Tribunal concurs that this is, indeed, a case that has unique or exceptional circumstances such that the case should be referred to the Minister for possible consideration for use of his Ministerial intervention powers. In particular, the Tribunal notes Mr Orr’s evidence of Meso Solutions’ significant growth since its establishment just 3 years ago and the personal contribution of Mr Rimsa to the business. It also acknowledges the likely adverse impact on Meso Solutions’ business and its Australian employees should Mr Rimsa be required to depart Australia.
Having regard to the circumstances of Mr Rimsa as outlined above, the Tribunal considers that this situation involves unique and exceptional circumstances. The Tribunal therefore considers it appropriate to request that this case be brought to the attention of the Minister in order for him to exercise his discretionary intervention powers under s.351 of the Act.
The Tribunal will forward to the Department documentation provided to the Tribunal by the applicants’ representative from Meso Solutions and others in support of the submission that this case meets the unique or exceptional circumstances in the Minister’s guidelines extracted above. Further documentation may be provided by the applicants and Mr Orr on behalf of Meso Solutions in support of the application to the Minister. In this regard, the Tribunal notes that Meso Solutions may wish to provide evidence of: a Financial Report for the financial year ended 30 June 2019; a signed contract of employment with attached position description for the occupation of Construction Project Manager and which does not contain a probationary clause; and, evidence of patents or trademarks for any of its systems and/or products, or evidence of communications with a Patent Attorney in relation to same.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Katie Malyon

Member
ATTACHMENT - Extracts from the Migration Regulations 1994
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.
oOOo

[2019] AATA 6673

1 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Appeal

FY ended 30 June	Income	Profit
2017	$5,673,837	$1,654,354
2018	$7,474,115	$4,604,369