Senewiratne (Migration)

Senewiratne (Migration) [2024] AATA 4044 (4 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr N Ajith Kalingo Joseph Pinto Jayatilleke Senewiratne
Mr Awindre Gerard Senewiratne
Mr Amantha Joseph Senewiratne
Mrs Anne Shamara Senewiratne
REPRESENTATIVE:  Mr Milinda Sanjeewa Balasuriya (MARN: 1801296)
CASE NUMBER:  2211827
HOME AFFAIRS REFERENCE(S):         BCC2019/5850798
MEMBER:Alison Mercer
DATE:4 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) subclass 186 visas.

Statement made on 04 October 2024 at 2:52pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Café or Restaurant Manager – no approved nomination – nomination withdrawn – impact of the COVID-19 pandemic on business – family employment in essential services – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 65, 351
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; rr 1.13, 2.12
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 27 July 2022 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 19 November 2019. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager.
The delegate refused to grant the visas because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the nomination of the applicant by his Australian employer, Zodiac Group Pty Ltd, had been refused by the Department on 23 February 2022. The delegate therefore found that the applicant did not satisfy a mandatory criterion for the TRT stream and had not made any claims to meet the criteria for any other stream. The delegate also refused to grant subclass 186 visas to the second, third and fourth named applicants (the applicant’s wife and children) on the basis that they could not satisfy the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence to indicate that they met the primary visa criteria in their own right.
The Tribunal received a review application from the applicants on 15 August 2022. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Milinda Balasuriya, as their representative and authorised recipient for correspondence.
On 22 July 2024, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing on 16 August 2024. They were requested to provide any material in support of their case to the Tribunal by 9 August 2024.
On 12 August 2024, the Tribunal received a hearing response indicating that the applicants would attend the hearing and wished the Tribunal to also take evidence from the applicant’s daughter, Dr Sherrica Anne Senewiratne, and son-in-law, Mr Asel Wickmal Abeysiri Molligoda.
The applicants also provided:
·numerous letters in support of their application for permanent residence from friends, former and current work colleagues, customers of the applicant, and from Dr Senewiratne, variously dated;
·evidence of the second named applicant’s employment as a Customer Service/Magazine and Storefront Coordinator for New Litho Pty Ltd from September 2023 onwards (including reference, employment contract and payslips) and testimonials from friends
·evidence of the third named applicant’s Australian Certificate IV in Commercial Cookery from William Angliss Institute and his employment as a Sous Chef and Head Chef at Upalis and The Grand on Princes in Melbourne, including payslips and reference letters from those employers;
·evidence of the fourth named applicant’s employment at Haileybury College as an Early Learning Educator, from May 2024, and her previous employment in the same role at Goodstart Early Learning, and testimonials from that employer and from colleagues and parents with whose children she has worked;
·evidence relating to the applicant’s current business, Lincoln of Toorak Receptions Pty Ltd (trading as the Lincoln of Toorak), with his Australian partner, Mr Nalin Rathnayake, including customer reviews and corporate registration details; and
·personal statements from each of the applicants.
In his statement dated 1 August 2024, the applicant made the following points:
…
I am writing to formally appeal the decision to reject my application for permanent residency in Australia. I arrived in Australia in November 2017 with my family on a 457 work visa with the intention of settling down and contributing positively to the Australian community and economy. Just before the fourth year of my work visa, I applied for permanent residency through my employer, The Zodiac Group. Unfortunately, my application was rejected. At this stage, I am seeking a tribunal hearing to justify my continued stay and settlement in Australia.
Since my arrival in 2017, I have been diligently working to support and grow The Zodiac Group. Despite the severe impact of the COVID-19 pandemic, which took the business from bad to worse, we persevered. During the lockdown, we pivoted to a food takeaway and delivery service, aiming to assist the community as best as possible during this challenging time. Through this service, I was able to help many less fortunate families by ensuring their daily needs were met with timely food deliveries. I also had to struggle with a reduction in income as there was insufficient income within the business to effectively to be payed [sic] everyone’s wages as normal.
It was a very stressful time for me and my family, especially as I knew that my visa status depended on the success of the Zodiac Group, too. We tried our very best to keep the business afloat after the pandemic, but with the rise in the cost of living and our reliance on functions as a source of income, the management had to make the difficult decision to close down the Zodiac Group. I was very upset by this decision, as I knew many of my colleagues had worked very hard alongside me to try and generate business. I also had several waitstaff and kitchen staff relying on me for their jobs, and it disheartened me to think they would all lose their jobs as well. Further to this, I worried about the future of myself and my family, as we had built our lives here in Melbourne, with hardly anything to go back to in Sri Lanka except for our parents. We had also given our home to a family friend who had lost their entire business and stream of income during COVID19. They have two sons still in high school and were asked to leave their rented home, with nowhere else to go. As our home in Sri Lanka was not occupied and we could not visit due to the travel restrictions, we asked them to live in our house, which has now become their primary residence and home.
Fortunately, I received the opportunity to work within the Grand Receptions on Princes and Lincoln of Toorak in between managing both venues to cut cost and build the business for my primary employer. This allowed me to continue working with the same staff from the Zodiac Group, including Maryse Fernando and Jude De Silva. I am effectively working within the same role now as I was in the Zodiac Group, with the additional responsibility of generating sales through liaising with clients more closely to cater to their needs. As a people person, I enjoy doing this as I find it very meaningful to work in a job where I can bring someone’s dream wedding to life or reunite long-lost friends at a high school reunion ball. I love meeting new people, and working in this job has allowed me to immerse myself in many different communities in Melbourne, including schools, as evident through my character reference letters. I always take the time to understand individual client’s needs and ensure we can provide them with a function they will never forget. I also take pride in looking after my staff, including Australians, migrants and international students. They all know me as someone they can rely on for support, regardless of how stressed out or busy I am, so they are always willing to approach me with their concerns. This has helped me build up a solid employee base consisting of staff who are dedicated, motivated and attentive in their jobs. This is very important to ensuring we live up to a high level of customer service at our functions so clients will continue to bring their functions to us. Unfortunately, we are still facing a massive loss in business due to the post-pandemic effects that have prevented Australians from spending in the same way they would have pre-pandemic.
However, in April 2024 I took over running of the business as Lincoln of Toorak Receptions, along with my business partner, Nalin Rathnayake. My goal is to generate a positive impact on the economy and the community by employing staff, paying them their due wages and superannuation on time, and fulfilling all tax obligations, whilst still ensuring we run memorable functions for our clients. I also want to give back to the community even further by approaching TAFE institutions in the future to allow students to come in and gain work experience through placements and internships with us. I believe we can provide an excellent experience for these students. I would love the opportunity to provide them with guidance and supervision through my 35+ years of experience in the hospitality industry. In addition to this, I want to create a business plan for the business that will ensure we remain profitable by enhancing our reputation as a leading functions centre in Melbourne. To do this, we need to plan ahead with certainty of where we can be in the next few years and who we will need to hire to ensure business demands can be met.
Unfortunately, these are not ideas I can proceed with if I am to go back to Sri Lanka and give up my entire life here. As I am in my mid-50s, the opportunities available to me are quite limited. Although my children are all grown up, they still depend on me as a father to keep the family fires burning, be the head of the house, and guide everyone in the right direction. Therefore, it is my duty to look after my family while ensuring I stay physically and mentally fit. The stress and anxiety caused by the uncertainty of my visa status have taken huge toll on me, and I pray that I will be allowed to see past this uncertainty and finally gain permanent residency in Australia. This is our home now, and I want to wake up knowing my future in this beautiful country is secured so my family can continue contributing to the economy, such as by purchasing a house in Australia and giving back to the community through the work we do.
Despite my busy schedule, I am an active member of The Lions Club of Southeast Business Wheelers Hill and have been involved in numerous community projects and services, further demonstrating my commitment to contributing positively to the community in Melbourne.
Additionally, in 2015, I paid international student fees for my daughter to study in Melbourne and qualify as a Psychologist. Now, she is working full-time as a lecturer and Organisational Psychologist so she can train future psychologists' minds and contribute to improving employee experiences at work. She has made us so proud through her dedication towards working in an occupation where she can genuinely make a difference in others’ lives. Although she is married and lives away from home, she is a big part of our lives, and we would be devastated to leave her behind. I humbly urge you to reconsider the decision made, so the future of myself, my wife and my sons are secured. My wife is in a job she truly loves, teaching at Haileybury, and both my sons are heavily invested in their work, physical fitness routines, and friendship groups. Leaving the country and starting again would be absolutely distressing, yet we have run out of options to stay in Melbourne permanently. We have sought advice from many lawyers and consultants, with some misleading us and some genuinely being open to helping us – which has led to where we are today. We want to ensure we are given this opportunity to continue our lives in Australia to give back in the best way we can and ensure no one else faces the same hardship we did. I am a strong Catholic and believe in doing good no matter what comes our way. I would love the opportunity to continue the work that my family and I have been doing here in Australia, with only an opportunity to securely stay here in Australia without the stress of uncertainty hanging above us as a request in return.
Therefore, I humbly appeal to the AAT to use its good judgment in granting my family and me the opportunity to continue our hard work and dedication to this beautiful country as permanent residents. We are committed to contributing to Australia’s growth and prosperity and believe that our presence here will benefit the community and the economy.
Thank you for considering my appeal.
…
In her statement dated 2 August 2024, the fourth named applicant made the following points:
…
My name is Anne Shamara Senewiratne, and I am the wife of the main applicant, Ajith Senewiratne. I am writing to request that you consider granting my family and me Permanent Residence status in this beautiful country, which has become our home for the past six years and ten months.
In October 2017, my husband and I migrated to Australia on his job-sponsored visa. Our daughter, Sherrica Anne Senewiratne was studying here at the time. As she came to Australia to commence her tertiary study in February 2015, she had settled down by the time we moved, so she helped us organise a house for us to live in. Thereafter, my husband and I travelled to Sri Lanka in February 2018 to bring our sons so we could officially move to Australia.
When we first moved here, it was challenging to find work as I had no Australian experience. After months of trying, I secured a position as a cleaner with Domestic Cleaners. Afterwards, I enrolled at Bestchance Training Institution in Glen Waverley to pursue a Certificate III in Education Support. Upon completing this qualification, I applied to many schools but did not successfully secure a job. Subsequently, I returned to Bestchance Institution to undertake the Certificate III in Early Childhood Education and Care, drawing on my experience as a preschool teacher in Sri Lanka. Bestchance Institution offered me a scholarship to pursue the Diploma of Early Childhood Education and Care, recognising my English proficiency and inability to afford the $5,000 fee for students living in Australia.
During this time, the COVID-19 pandemic occurred, disrupting classes. I helped my husband with his work in the food takeaway and delivery service, but continued to study online. We faced significant hardships due to reduced income, but we managed to survive the crisis.
Despite numerous lockdowns, I completed my Diploma and secured a position as an Educator at Australia’s largest not-for-profit early learning provider, Goodstart Early Learning, at their Ferntree Gully and Stud Road, Rowville Centres. In this role, I worked with toddlers and kindergarten children, supporting vulnerable children and those with additional needs. I also fostered strong relationships with families to support their children's early growth and development. Additionally, I participated in fundraising events organised by the Centre to raise funds for community projects.
After completing two years at Goodstart, I requested a DAMA sponsorship due to being over the age of fifty, and the uncertainty surrounding my husband’s visa status. The company informed me that they could not sponsor me for Warrnambool and instead offered me Darwin. Although I had an interview, I was informed that securing sponsorship would involve a long wait and was not guaranteed. This meant another pathway to securing our life here in Melbourne was uncertain, and I was worried about what this would mean for my sons’ futures. My husband and I moved here with the hopes of giving them a better life, as they are now exposed to many more opportunities that they would have never received if we had remained in Sri Lanka.
I was also fortunate to secure full-time employment as an Educator at Haileybury, Keysborough, since May 2024. This gave me the opportunity to continue working in a field where I can give back to the community, educate future generations, and contribute positively to the lives of all my students and their parents. I really love my job, and I hope that I will be given the opportunity to stay in this role for many more years to come.
Over the past years, my family and I have built strong bonds with the community, and my entire family is employed in roles that are currently in demand, serving the community. In addition to this, our daughter secured her permanent residency as a Psychologist, due to the work she contributed to during the global pandemic. We consider ourselves blessed to have our entire family in one country. Our daughter is also married now, and hopes to start a family someday. Therefore, our wish is to be here in Australia to help her raise our future grandchildren, whilst we continue to contribute positively to the economy and communities we are a part of here in Melbourne.
I hope this information will be considered when deciding on our status in this country. Thank you for your consideration.
…
In his statement dated 5 August 2024, the third named applicant made the following points:
…
My name is Amantha Joseph Senewiratne, and I am the oldest son of Ajith and Shamara Senewiratne. I moved to Melbourne with my parents and my brother in February 2018 from Sri Lanka with hopes of a better future. This required leaving behind my grandparents, school friends, and other family, which was hard, but we knew it was for the right reasons. However, my sister was already studying in Melbourne at the time, so it was good to know our family was going to be reunited after a short period apart.
We’ve built a happy and fulfilling home here in Melbourne over the past few years. I graduated from High school, completing VCE in 2019, completed a Certificate IV in Commercial Cookery at William AngIiss Institute Melbourne in 2021, studying both on campus and off due to the Covid-19 pandemic, and I am now the Head Chef for The Grand on Princes Reception centre based in Mulgrave. None of this would have been possible if my parents hadn’t decided to bring us here to Melbourne. As a family, we’ve done our best to give back to the community around us and also contribute to the economy, especially during COVID-19.
During this time, my dad and I faced many struggles at work as the hospitality industry faced challenges brought on by lockdown and a sudden loss of customers. During this period, I was employed at a Sri Lankan restaurant in Glen Waverley (Upali’s Melbourne). I continued working during the pandemic to help the Head Chef with takeaway orders, deliver food orders, and complete general kitchen duties.
After that, I joined the Grand on Princes as a cook and worked hard to be appointed the Head Chef more recently. My responsibilities include menu planning, costing, writing efficient prep tasks and lists, ordering, and maintaining and ensuring the team follows OHS laws. I manage a team of up to 10 people consisting of cooks and kitchen hands, including Australians. I also specialise in constructing new menus and dishes according to factors such as season and client background/requirements. This requires a good knowledge of the hospitality industry, client requirements, and the ability to assess clients’ needs against what is practical for the business. These are all skills that are very much in demand in the hospitality industry, and I am honoured to be able to contribute to work that helps meet the current needs of the industry.
Outside of work hours, I like catching up with my friends from school and old work colleagues, be it for a drink at a bar or over a relaxing coffee at our local café. I believe in giving back to the economy through the hospitality industry, as that is the very same field I am a part of. This also helps me learn about the latest culinary trends and dishes that I could introduce to my clients.
I also enjoy going to the Gym and putting time and effort towards my physical strength. The gym is also where I go to find mental peace amidst daily life stressors. All this has contributed to helping me build a life in Melbourne, which I am very comfortable in, and I wouldn’t have been able to get if I had stayed in Sri Lanka. I want to be able to continue my duties as the Head Chef as I am very passionate about cooking, and I also want to continue being close to my family. I have tried to explore other pathways to get my permanent residency, as I know there may be restrictions due to my age. However, I have been unsuccessful so far in securing anything positive. This has caused a lot of stress for me as I worry I won’t be able to continue living the life I have established in Melbourne. If I had to return to Sri Lanka, I would have to start again, setting me back many years in my career. I won’t be able to secure employment as a Chef there, as the cuisine is very different and will require me to return to studying in a junior role.
I sincerely hope all the above will be considered in the decision regarding our family’s case, as we have worked hard to establish our lives here and make a home for ourselves.
…

The second named applicant made the following points in his statement dated 5 August 2024:
…
My name is Awindre Gerard Senewiratne, and I am the youngest son of Ajith and Shamara Senewiratne. I have been living in Australia since February 2018, when my parents brought me and my brother to Melbourne. I have grown up here and made this country home to me. I am writing with sincere hope that you may consider granting me and my family permanent citizenship in this beautiful country that has now become our home.
I started schooling here in Melbourne at Wheelers Hill Secondary College, when I was 12 years old, which meant my crucial years of growing up and entering my teenage life were fostered in the Australian culture. All my closest friends to this day are the ones I have made at school, and I can’t imagine living without being in the same country as them. I can confidently say that the bond I have created with some of my friends is extraordinary. Throughout the last seven years, we have had a significant impact on each other’s mental health and social well-being, especially during the pandemic when so many others suffered from isolation and loneliness.
Once I graduated from school, I wanted to pursue studies in the commerce field at a university. However, due to my parents’ financial situation and not having access to HECS/HELP, I could not pursue this career pathway. Ultimately, I was able to attend TAFE and study a Certificate IV in Real Estate Practice at Chisholm Frankston, despite the high cost as an international student. My parents were able to afford this for me by paying the course off on a payment plan. After graduating from the course in July of 2023, I didn’t go into work in real estate as I didn’t get my certificate until all payments were made (the final payment was in December 2023). However, within the period of paying off the course and attaining the certificate, I was able to secure employment in a full-time role in customer service at a print company named NEO/Eastern Press in Mulgrave in September 2023, where I currently work and occasionally liaise with real estate agents as clients. While working at NEO, I tried to secure full-time employment within real estate to make use of the skills gained through my study at TAFE. However, upon handing in my resignation, my workplace manager and CEO prompted me to reconsider leaving by engaging me in a discussion regarding the value I had brought to NEO and why I should continue working there. I was also offered a pay raise and additional responsibilities, so I decided to stay with them. I have also developed new skills and knowledge, such as using InDesign, creating magazines, and basic coding. This new knowledge has further created interest within me to take up studies in the IT field in the future, which I will only be able to do if I can continue living in Australia.
Apart from work, when I turned 16, I became heavily invested in my physical health and became a part of not one but two communities within gyms. Being surrounded by like-minded people has significantly impacted my knowledge of physical health. I have also learned so much about networking through my dad, which has impacted my ability to make friends and form strong bonds with people throughout my life. Being a part of these welcoming communities makes me feel highly valued, and I have developed a tremendous emotional connection and sense of belonging from such communities. This would not be possible if my parents had not made the difficult decision to uproot their lives and bring us to Melbourne to have a better life, compared to the one we would have had in Sri Lanka. For example, I could not have pursued powerlifting if I had still been in Sri Lanka, as I would not have been able to afford a coach or gain access to all the healthy food required to maintain my physique. The people around me have consistently inspired me to pursue powerlifting as a hobby, and I firmly believe I have the potential to become an APL national powerlifting record holder someday. To achieve this goal, I must continue being a member of the gym I currently attend (HUSLA gym located in Mount Waverley). I also have to continue being coached by my current coach, Jason, who owns HUSLA gym and coaching. To be a part of HUSLA, there is a waitlist where you will be assessed before being accepted into the gym, which means you must be serious about improving your physical health. Jason did not keep me on a waitlist and saw potential in me right from the start. He agreed to work alongside me to achieve my goals, which I was very proud to accomplish.
Further, through earning a full-time wage and also working casual shifts as a waiter/bartender at Upali’s Melbourne (Currently undergoing a rebrand – to be named ‘Spicy Wicket), I am able to support my parents financially, while also buying my first car. I have developed a tremendous emotional connection to my car due to the joy it has brought me, which also comes with learning how to drive and getting my license as soon as I turned 18. Buying a car at 18 would not have been possible if I had never come to Australia, and I am eternally grateful to my parents for bringing me here and giving me and my brother a better life. My sister was already here when we moved, so it was good to have our family reunite in one country, and I sincerely hope that you will consider granting us permission to live permanently in Melbourne.
Thank you for considering my and my family’s application and for reading this letter.
…
The applicant’s daughter made the following points in her written statement:
…
My name is Dr. Sherrica Anne Senewiratne, and I am the daughter of Ajith and Shamara Senewiratne and sister of Amantha and Awindre Senewiratne. I am writing this letter as a humble request for you to consider granting permanent residency to my family.
In 2015, my parents made the difficult decision to send me to Melbourne, Australia, to begin my tertiary study, miles away from home. It was not easy to choose to study far away from the home where I grew up, within the safety of my parents’ love and warmth. However, I was delighted to hear my dad had secured an employer-sponsored visa in 2017, and so I helped them settle down and start their life in Melbourne before they brought my brothers over in early 2018.
After my parents moved here, I moved back in with them to their rented home in Mulgrave, after living independently as a student for almost three years. My dad used to drop me at work and university, and my mum used to cook for me. This helped ease the stress I would have experienced if I had been living alone as I was studying to be a Psychologist, and I needed to dedicate a lot of time to studying.
When COVID hit, we were all in lockdown, allowing us to spend more time together. We watched movies, ordered Uber Eats (way more than we should have), and tried to make the most of our time together. However, my dad was extremely stressed during this time as his workplace took a massive hit with the loss of functions. They pivoted to doing takeaway and delivery orders, but it was insufficient to cover the costs of keeping the business afloat. There were many changes within the business throughout the post-pandemic years, and following it, I saw the toll it took on my dad. He was always stressed about work, especially as he knew it would impact his visa status. Yet, he did everything in his power to look after our family, put food on the table, and come home with a smile, his worries hidden away.
Fortunately, I secured my permanent residency in July 2021, as my work as a psychologist throughout the pandemic was vital to improving the mental health and wellbeing of employees across Australia. My specialty is in organisational psychology, and with all the uncertainty and changes that came with the pandemic, the organisation I worked for (Opposite) was extremely busy with the high demand in employers reaching out to us to help them look after their employees during these difficult times. I genuinely enjoy engaging in meaningful work, so this was a time when I could apply my skills from all my studies to helping people.
I also had a boyfriend in Sri Lanka (Asel Abeysiri, who also studied in Melbourne), and we hadn’t seen each other for almost two years due to the pandemic. When I returned to Sri Lanka in December 2021, he proposed to me, and we officially married on 5th December 2021. Unfortunately, my parents could not be there due to travel restrictions, so I refused to have a wedding celebration without them around. Finally, once everything had eased up, we planned a church ceremony and wedding celebration in January 2023, which my family could attend. It was a great occasion, and I had my dream come true as my dad was able to walk me down the aisle, and my mum was able to drape my veil on me, per the traditions we abide by.
While all this was happening, my dad went through a lot at work trying to keep the business afloat. Finally, he secured a more stable role with some of the colleagues he worked with at the Zodiac Group Pty Ltd, under Lincoln of Toorak. They are also a reception centre, and he works tirelessly around the clock to secure functions and make people’s dreams come true, whether through a milestone birthday celebration or a wedding. The passion he exhibits in his work is unlike any other. This inspired me to leave my role in consulting and take up a full-time role as a Lecturer within the School of Psychology at Deakin University this year, as I wanted to give back to Deakin for all the great experiences I had. I want to help other international students have the same positive experience I had when I first moved here, although I was fortunate to have my family join me a few years into my studies.
Additionally, I completed a PhD on servant leaders and their wellbeing. Servant leaders are dedicated to helping others, and aim to put service above self regardless of what they desire. However, I was interested in studying how this constant need to put service above self could impact their wellbeing. My dad inspired this research – through watching him constantly put others’ needs above his own, even at the risk of neglecting his sleep and mental health, he pivots to helping people no matter what time of day it is. Yet, he never falls, and he never breaks, so I can’t think of anyone more deserving to continue working and contributing to this community than my dad (and my entire family).
My parents have taught us to be good citizens, be kind, and help others no matter what. These are the same values I want to instil in my own children someday, and I need my parents around to help me to pass these values down. I need them around to help me teach my own children right from wrong, and to safeguard them from all the scary things that happen in the world we live in, whilst also remembering to celebrate the important occasions like birthdays and milestones in life.
Therefore, I urge you to please consider granting permanent residency to my family. They are already doing so much good work within their current roles to help others, so please allow them to continue contributing positively to the economy and communities here in Melbourne.
…
The applicants appeared before the Tribunal on 16 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Sherrica Senewiratne and her husband Mr Asel Wickmal Abeysiri Molligoda, and submissions from the applicants’ agent.
Each of the applicants confirmed the contents of their written statements.
The applicant clarified that he was originally sponsored and nominated for a temporary residence visa by the Zodiac Group Pty Ltd, which operated a number of reception venues, including Lincoln of Toorak, the Grand on Princes, and the Grand Metropolitan. Initially, the applicant was engaged as the restaurant manager at the Grand on Metropolitan, but the then manager, Mr Jude Fernando, was impressed with his work and he was promoted to running the functions at all of the Group’s venues. At the time he made the subclass 186 permanent residence application, the applicant was operationally involved across the whole business and all of its venues.
The applicant confirmed that the advent of the COVID19 pandemic in early 2020 had a significant adverse effect on the Zodiac Group Pty Ltd’s businesses. Although he and the other employees and owners pivoted to take away food and deliveries, the business was unable to survive and the owner was forced to declare bankruptcy after the lockdown ended. However, new owners took over the Grand on Princess and the Lincoln of Toorak. The applicant said that he and an Australian partner, Mr Nalin Rathnayake, registered a company, Lincoln of Toorak Pty Ltd, and took over the Lincoln of Toorak reception venue. The applicant confirmed that he and Mr Rathnayake are the directors of the company, that the applicant is a 51% shareholder and Mr Rathnayake holds 49% of the shares, and is the Head Chef. The applicant is the director and manager of the business, which continues to pick up following the end of the COVID19-related lockdowns in Melbourne. The applicant said that the business employs approximately 15 people. Its clients include repeat bookings by local schools for social functions, as well as wedding receptions, anniversaries and other functions for various groups and families. The applicant said that in addition to his other responsibilities, he had been focussing on marketing the business to attract more bookings.
The applicant told the Tribunal that he and his family had been in Australia for over 7 years now and had made their lives here. Their family home was their only remaining asset in Sri Lanka, and it was currently occupied by the family of a friend of his younger son, who had been at risk of homelessness during the COVID19 pandemic. The applicant told the Tribunal that in Sri Lanka, he had previously worked for the national airline, but this work was no longer available to him, and it would be extremely difficult to start again there from scratch. He and his agent also noted that although Lincoln of Toorak could potentially nominate him for another (temporary) visa, he would have to go offshore to apply and he was now outside the age range for a subclass 186 visa.
The third named applicant told the Tribunal that he undertook his final years of secondary education in Australia, and then completed a Certificate IV in Commercial Cookery at the William Angliss Institute. This had enabled him to be promoted to his current role as Head Chef at the Grand on Princes. The third named applicant noted that much of his study at William Angliss had to be undertaken online due to the COVID19 pandemic, which made the course harder (as they were unable to undertake practical work or placements) and longer by about 6 months. In response to the Tribunal’s query, the third named applicant said that his current employers had discussed whether they could nominate him for a temporary or a permanent visa but had determined that they were not yet in a financial position to do so, as they had only relatively recently taken over the business from the Zodiac Group Pty Ltd. The third named applicant told the Tribunal that he was dedicated to trying to assist in getting the hospitality industry back on its feet, but it still faced significant challenges after COVID19, notably the current cost of living situation which meant that customers thought carefully about going out to dine.
The second named applicant confirmed that he undertook all of his secondary schooling in Australia from the age of 12 to 17, and had close friends here, as well as his family. He clarified that his current employers, NEO, had expanded his responsibilities within the business from his initial role there, as they recognised his skills. His expanded role had in turn led him to develop an interest in IT, which he hoped to study formally in future. However, at present, the fees payable for him as an overseas student were too high to pursue this. The second named applicant confirmed that he and his brother became committed to their fitness training during the COVID19 lockdowns and that he was pursuing power lifting under the tutelage of one of the world’s best coaches. The second named applicant said that he hoped to be able to set a national record before he finished his teen years, and intended to compete to do this in early 2025. He further confirmed that he still works part time for Upali’s bar and restaurant, and intended to continue to do so as he enjoyed it and the additional earnings had enabled him to purchase a car recently.
The fourth named applicant confirmed to the Tribunal that she trained in early childhood education in Sri Lanka but once her own children were at born, she ceased external employment to look after them, as the applicant travelled frequently for work with Sri Lanka Air. When she relocated to Australia, she initially found work as a cleaner but decided to requalify as an early childhood educator here. She undertook a Certificate IV with BestStart, then received a scholarship to undertake a Diploma. She told the Tribunal that she was passionate about the field and would like to undertake a Bachelor of Early Childhood Education, which her current employers Haileybury College supported, but the cost as a temporary resident/overseas student was prohibitive. The second named applicant confirmed that she worked for GoodStart childcare (a large national provider) for 2 years before starting at Haileybury College in early 2024.
The second named applicant confirmed that the whole family is very close, and that her daughter Sherrica and her husband, would be devastated if the applicants had to leave Australia. The second named applicant said that she hoped that her daughter would have children and that she was looking forward to being a grandmother.
In response to the Tribunal’s query, the second named applicant said that she had looked into obtaining sponsorship from a state government for a regional visa, as there was a shortage of early childhood educators, but was advised that the process was long and uncertain, and that her age counted against her. She had therefore not pursued this option, as she had not been offered state sponsorship.
Dr Sherrica Senewiratne confirmed that she came to Australia to study at Deakin University in 2015, where she met her now husband. The rest of her family joined her in 2017 and 2018. After graduating and completing her Masters and a PhD in Psychology, Dr Senewiratne said that she decided to leave consulting in the private sector and return to Deakin as an academic. She was initially taken on on a contract basis but was recently appointed to an ongoing role. Dr Senewiratne said that she was prompted to do this because she wanted to do something meaningful with her work, and intended to research areas such as the experience of migrants and overseas students. She also noted that, amongst other things, her father’s experiences and approach to his job and his life as a whole influenced her choice of PhD subject, which was about leaders who sacrificed much to support their employees, and the costs of this to them. She told the Tribunal that the family is very close and that she and her husband spend Sundays with the rest of the family. In response to the Tribunal’s query, Dr Senewiratne confirmed that she became a permanent resident in 2021 and is now eligible to apply for Australian citizenship. However, her and her husband’s financial priority was their mortgage at present so she had not yet applied for citizenship. She said that she would be devastated if her family had to leave Australia.
Mr Molligoda said that after he graduated from his Banking and Finance course at Deakin, he returned to Sri Lanka for 6 or 7 years, but maintained a long distance relationship with Dr Senewiratne, and kept in touch with the whole family. He noted that the applicant got him his first professional job in Sri Lanka. Since marrying Dr Senewiratne and relocating to Australia, he had found work in marketing with a firm that sold robotic devices for homes (such as robot vacuum cleaners). This business was taking off and his finance background was an advantage in his employment. He confirmed that he and his wife were very close to her family, and he said that from his own experience, he thought that the second and third named applicants in particular would struggle to relocate to Sri Lanka having spent their formative years in Australia.

The applicants’ agent noted that the events of the COVID19 pandemic, the demise of the Zodiac Group Pty Ltd and the refusal of the family’s permanent residence visas had taken a significant psychological toll on the applicant in particular, as the family head.
The Tribunal indicated that it expected to make its decision in 2 to 4 weeks, and noted that it had no option to affirm the decisions under review, given the advice that Zodiac Group Pty Ltd had ceased trading and had withdrawn its review application in respect of its nomination refusal. The Tribunal further indicated that it would consider referring the applicants’ matter for Ministerial intervention pursuant to s.351 of the Act, noting that there was no guarantee that the Minister would intervene, or how long that process would take.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
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 reg 1.13A and reg 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.
It is not disputed that at the time of the delegate’s decision on 27 July 2022, the applicant was not the subject of an approved nomination by his original nominating employer, Zodiac Group Pty Ltd, as its nomination of him had been refused on 23 February 2022. Although Zodiac Group Pty Ltd sought review with the Tribunal of that decision, it subsequently withdrew its review application on 9 August 2024 and the Tribunal made a decision on 14 August 2024 that it had no jurisdiction to review the Department’s nomination refusal decision.
As discussed with the applicants at the hearing, since 18 March 2018, major legislative amendments were made to the subclass 186 and 187 visa categories and their associated nominations, such that a nomination by a new employer now would not satisfy cl.186.223 in respect of a subclass 186 visa application for which the applicant was originally nominated by another employer.
Accordingly, the Tribunal must find that the applicant does not meet cl.186.223(2) and (4) and thus does not meet cl.186.223 as a whole.
The applicant has only sought to satisfy the criteria for a subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed in relation to the applicant.
The Tribunal must also affirm the decisions not to grant subclass 186 visas to the second, third and fourth named applicants, as it finds that they cannot meet the secondary visa criteria in cl.186.311 requiring them to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that any of them meets the primary visa criteria in their own right.
Other matters
In the event of an unsuccessful review application, the applicants have asked the Tribunal to refer this matter to the Minister for consideration of the Minister’s power to intervene and grant them visas pursuant to s.351 of the Act.
Under s.351 of the Act, the Minister can substitute for a decision of a review tribunal a decision that is more favourable to a person, if he or she thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to determine, and the Minister’s power to intervene is personal and non-compellable. This means that the Minister does not have a duty to use, or consider using, any of the powers.
There are Departmental guidelines (set out in the Department’s most recent Procedures Advice Manual, or PAM3) setting out what kinds of cases might result in Ministerial intervention, and also circumstances in which the Minister considers it would be inappropriate to intervene. The Tribunal has included the guidelines as an attachment to this decision.
There is no evidence before the Tribunal to indicate that the applicants’ case falls within the scenarios set out in the list of cases where the Minister has indicated that they would not intervene.
The applicants and their agent’s submissions seeking Ministerial intervention can be summarised as follows:
·the application of the relevant legislation leads to particularly unfair or unreasonable results in this case, in that the closure of the applicant’s nominating business due to the downturn caused by the COVID19 pandemic was outside the applicant’s control. Moreover, he made every effort to try to ensure that the business continued to operate but was ultimately unable to do so. Had the COVID19 pandemic not occurred, the applicant and his family would have been granted permanent residence;
·the applicant is gainfully employed and is continuing to work in another Australian business in a similar capacity as that for which he was nominated for the subclass 186 visa in 2019. He and his Australian citizen partner have built this business back up after the COVID19 pandemic, and the applicant’s skills and commitment, have been, and are, integral to the success of the business, which employs Australians;
·the applicant has been in Australia since 2017 and the second, third and fourth named applicants have been in Australia since 2018. The family is well settled and integrated into the Australian community and have very close ties to the family’s eldest child, Dr Sherrica Senewiratne, and her husband, who are Australian permanent residents;
·Dr Senewiratne and her husband would be emotionally distressed if the applicants had to return to Sri Lanka, as would the applicants;
·the fourth named applicant is employed full time as an Early Childhood Educator, the third named applicant is employed full time as a Head Chef, and the second named applicant is employed full time for an Australian business in customer service and IT;
·the second and third named applicants have spent their formative childhood/teenage years in Australia and would struggle to reintegrate into Sri Lankan society, as their education, employment and social networks are in Australia;
·the family has few assets left in Sri Lanka, apart from the family home, which is currently occupied by family friends who would otherwise have been at risk of homelessness during the COVID19 pandemic;
·the applicant in particular would struggle to re-establish himself in Sri Lanka due to his age and the lack of employment opportunities for him there; and
·the applicants had made their lives here and were well integrated into the Australian community.
The Tribunal notes that the purpose of the subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream, is for employees of Australian businesses to transition from temporary to permanent residence in recognition of their past work for their Australian employer and the ongoing need of that employer for their skills. In this case, the applicant is still essentially working in his nominated occupation for another Australian business, and the Tribunal accepts that he would still be working for his nominating employer had that business not been significantly affected by the COVID19 pandemic and the associated lockdowns in Melbourne that decimated the hospitality industry. The Tribunal further accepts that being nominated by his current Australian employer would not be feasible for the applicant due to his age now (54 years).
Even if this option were hypothetically available, the Tribunal considers it would involve significant additional costs to the applicants and that it would be disruptive to the applicant and to the applicant’s employer if the applicant had to depart Australia for an unknown period and apply for a new visa offshore.
The Tribunal further notes that the applicant is still of an age where he could be expected to work full time for another 10 to 15 years or more. The Tribunal also notes that while the most recent Skills Priority List (issued October 2023) produced by the Australian government’s National Skills Commission does not currently list Café or Restaurant Managers as being in short supply in Victoria, the applicant’s role in with his current employer (of whom he is also a director) is broader and more extensive than simply managing a café or restaurant, and it accepts that if he were to have to depart Australia, it would be hard to replace him and this would adversely affect the Australian business, his Australian co-director and the company’s employees, as the applicant is integral to the business.
The Tribunal further notes that the third named applicant’s occupation of Chef is listed as being in demand throughout Australia (including Victoria) in the Skills Priority List, as is the fourth named applicant’s occupation of Early Childhood (Pre-Primary) School Teacher/Educator. Both they, and the third named applicant, are employed on a full time basis in Australian businesses, where they are all valued employees.
Finally, the Tribunal accepts that if the applicants had to depart Australia, they would be separated from their close family member, Dr Sherrica Senewiratne, an Australian permanent resident, and this would cause all family members considerable distress.
When taken together, and cumulatively, the Tribunal is satisfied that these factors constitute unique and exceptional circumstances which warrant consideration by the Minister pursuant to s.351 of the Act, and it refers the case to the Minister for this purpose.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) subclass 186 visas.
Alison Mercer
Senior Member

ATTACHMENT A
186.223(1)     The position to which the application relates is the position:
(a)nominated in an application for approval that:
(i)identifies the applicant in relation to the position; and
(ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.
ATTACHMENT B: Extracts from Procedures Advice Manual (PAM3) on Ministerial intervention
…
3. Ministerial intervention principles
The following principles apply to the intervention powers covered by these guidelines:
·it is my general expectation that a person who has not been granted a visa through the statutory visa process will leave Australia
·consideration of a case for intervention is at my discretion and is not an
extension of the visa process
·if a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for me to intervene
·I will view a case referred to me unfavourably if the person has not complied
with the conditions of a previous visa, has provided false or misleading
information to the Department or any other relevant authority (such as an
assessing authority) or has been an unlawful non-citizen
·I expect a person requesting my intervention to:
o be a lawful non-citizen if they are in the community when they make
their intervention request and remain a lawful non-citizen until that
request is finalised
o cooperate in ensuring that their travel documents are available and
valid, and
o continue to engage with the Department and assist with any enquiries, particularly those concerning their identity
·I expect a person requesting my intervention to continue to make
arrangements to leave Australia while their request is being progressed. If the
request is unsuccessful, I expect any person who is the subject of the request
to leave Australia.
CASES THAT SHOULD BE BROUGHT TO MY ATTENTION
4. Unique or exceptional circumstances
Cases that have one or more unique or exceptional circumstances, such as those
described below, may be referred to me for possible consideration of the use of my
intervention powers:
·strong compassionate circumstances that if not recognised would result in
serious, ongoing and irreversible harm and continuing hardship to an
Australian citizen or an Australian family unit, where at least one member of
the family is an Australian citizen or Australian permanent resident
·compassionate circumstances regarding the age and/or health and/or
psychological state of the person that if not recognised would result in serious,
ongoing and irreversible harm and continuing hardship to the person
·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
·the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control
·a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country
·the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.
·
5. Other relevant information
For all cases referred to me under these guidelines, the Department will provide
information on any other relevant issues, including the following:
·circumstances that may bring Australia’s obligations under the Convention on
the Rights of the Child into consideration, including the best interests of the
child - which must be treated as a primary consideration, but can be balanced
against other primary considerations
·circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme
·whether the continued presence of the person in Australia would pose a threat
to an individual in Australia or to Australian society or security or may
prejudice Australia’s international relations
·whether there are character concerns in relation to the person, particularly
concerns related to criminal conduct
·information about a person’s history of compliance with Australian laws,
including migration laws, such as:
o any offence or fraud against the migration or citizenship legislation
o any failure to comply with their visa conditions
o any periods as an unlawful non-citizen in the community
o their history of cooperation and engagement with the department to resolve their immigration status, particularly in relation to identity
and travel documents
·details of any ongoing court proceedings challenging a decision related to the case and any outcome available before I consider the case
·the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.
CASES THAT SHOULD NOT BE BROUGHT TO MY ATTENTION
6. When the powers are not available
My intervention powers are not available if:
·there is no review decision on the case by a relevant review tribunal or
·I have exhausted my power in relation to a review tribunal decision because I have already intervened to grant a visa.
7. Inappropriate to consider
Cases which do not meet these guidelines for referral, and with the types of
circumstances described below, are inappropriate for me to consider. The Department
will finalise these cases without referral to me and advise the person or their authorised
representative in writing:
·the request is made by a person who is not the subject of the request or their authorised representative
·the person is in the community and:
o is an unlawful non-citizen and remains an unlawful non-citizen
throughout the course of their Ministerial intervention request;
and/or
o does not cooperate in ensuring that a valid travel document is
available (or has not satisfied the Department that they are
stateless)
·the person has been found not to satisfy a fraud-related Public Interest
Criterion for the grant of a visa
·the person’s visa has been cancelled because they breached their visa conditions
·the person has had a visa refused because they did not comply with the conditions of a previous visa
·the person has been refused a visa or has had a visa cancelled on character grounds
·ASIO has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment
(ASA) which remains in effect
·the person could apply for a Partner visa onshore but is subject to an 8503 condition (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided
·the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations)
·the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore
·the person has left Australia
·the person has an ongoing application for a substantive visa (either onshore or offshore) with my Department
·the person has an ongoing application for merits review of a visa decision with
a relevant review tribunal
·the person has had a remittal or a set aside decision from a relevant review tribunal or a court
·the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E
·the person has an ongoing Ministerial intervention request under any of the powers covered by these guidelines
·a Notice of intention to remove has been issued to the person, and the Ministerial intervention request has not been initiated by the Department
·the person holds a Bridging visa E with visa condition 8512, which specifies that the person must leave Australia by a specified date
·the request raises claims only in relation to Australia’s non refoulement obligations.
…

[2024] AATA 4044

4 October 2024

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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