Sharma (Migration)

[2020] AATA 4795

Sharma (Migration) [2020] AATA 4795 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ashwani Sharma
Mrs Harpreet

CASE NUMBER:  1833562

HOME AFFAIRS REFERENCE(S):          BCC2017/5020126

MEMBER:Alison Mercer

DATE:27 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 27 October 2020 at 11:20am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Baker – subject of an approved nomination – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

CASES
Kaur (Migration) (2018) AATA 4539
Singh v MIBP [2017] FCAFC 105

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 31 December 2017. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).

3. The 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition (TRT) stream, to work in the nominated position of Baker.

5. The delegate refused to grant the visas because he found that the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by his Australian employer. The delegate found that the Department refused to approve the nomination of the applicant by his employer, Pizza@Home Pty Ltd, on 28 September 2018. The delegate found that the applicant therefore did not meet cl.186.223 as a whole. The delegate also refused to grant the second named applicant (the wife of the applicant) a subclass 186 visa, as he found that she was not the member of the family unit of a person who held a subclass 186 visa, and there was no evidence that she met the primary visa criteria in her own right.

6. The Tribunal received a review application from the applicants on 15 November 2018, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Timea Pocze-Graf, as their representative and authorised recipient for correspondence.

7. On 16 June 2020, the Tribunal wrote to the applicants to advise them that their agent’s registration had been suspended, and requesting that they advise whether they wished to appoint a new agent, noting that the Tribunal would continue to send correspondence to the agent (who remained their authorised recipient) unless they notified otherwise. The Tribunal also wrote to the agent on the same date requesting that she advise what arrangements had been made for the applicants.

8. On 24 June 2020, the Tribunal wrote to the applicants, via their authorised recipient, pursuant to s.359A to invite them to comment on information held by the Tribunal. Specifically, the Tribunal noted that the applicant’s employer, Pizza@Home Pty Ltd, lodged an application for review with the Tribunal in relation to the Department’s refusal of its nomination, but that on 4 February 2020, the Tribunal made a decision that it had no jurisdiction in that matter. The Tribunal advised that this indicated that there was no approved nomination of the applicant by that employer. The Tribunal further advised that this indicated that the applicant could not meet cl.186.223, and that if it found this, this would be the reason (or part of the reason) to affirm the decision to refuse him a subclass 186 visa. It further advised that if it found this, it would also have to find that the second named applicant did not meet the secondary visa criteria and (as there was no evidence that she met the primary visa criteria in her own right), this would be the reason (or part of the reason) to affirm the decision to refuse to grant her a subclass 186 visa. The Tribunal invited them to comment on, or provide a response to, this information by 8 July 2020.

9. On 8 July 2020, the Tribunal received an authority from the applicants appointing a new agent, Mr Hargobind Jholl, and a response to the Tribunal’s s.359A letter, in which the agent indicated that (in summary):

   ·at the time of the applicant's application on 31 December 2017, the applicant was nominated as a Baker by his employer, Pizza@Home Pty Ltd;

   ·the applicant's nomination was rejected on 28 September 2018;

   ·the cause of cessation of the employer Pizza@Home Pty Ltd was because of a group restructuring of the companies;

   ·the applicant was informed by his employer Pizza@Home Pty Ltd on 6 June 2018, by way of letter dated 6 June 2018 ,that his employment was now transferred to another company within the group;

   ·it is significant to understand the full arrangements and relationship between Pizza@Home and Della Rosa. This is detailed in the said letter of 6 June 2018;

   ·as far as the applicant was concerned, his employment was transferred within the employer's group of companies;

   ·what the employer did with the structure of the company was beyond the applicant's control;

   ·the applicant should be given the benefit as he was a genuine employee undertaking the work he was engaged for;

   ·more importantly, the following was referred to in the said letter, and should be highlighted:

   " Pizza At Home Pty Ltd and Della Rosa are " associated entities" in accordance with the Corporations Act 2001.

   WHAT DOES THIS MEAN TO YOU/

   As a transferring employee, Della Rosa will recognise the following entitlements:

   - Length of service

   - Annual Leave balances

   - Personal Leave balances

   YOUR ENTITLEMENTS

   At the time the transfers occurs, you will receive a letter advising of your annual leave and personal leave balances that have been transferred across to Della Rosa.

   This change will have no effect on your employment on a day to day basis, your wages will remain the same and your hours and shifts will remain the same. This is a legal change to assist the business in moving forward to be under one roof at National Boulevard.

   You will be provided with an updated employment contract in the coming weeks that shows your entitlements will continue to come from the Food, Beverage and Tobacco Manufacturing Award 2010.

   Your employment records will be transferred to Della rosa from 4 July 2018 and Della Rosa is required to keep them in accordance with record keeping obligations under the Act..... "

   ·what was clear was that the applicant was transferred from Pizza At Home to Della Rosa. All his entitlements, wages and work remained the same. It was an arrangement between the employer and its group of entities for legal reasons as was claimed;

   ·the applicant acknowledged that the nomination by his employer came to an end, but he was not advised by his former agent and did not realise that he needed to get a new nomination;

   ·he inadvertently believed that the transfer of employment to Della Rosa meant that his employment nomination remained. The situation was that the applicant was today in a difficult position because of the conduct of his former employer, which was not in his control;

   ·the applicant requested that the Member granted him time to get a new employer nomination. He had a few interested employers but all discussions were on hold pending resolution of the COVID19 situation; and

   ·the applicant had been with Della Rosa since 2018.

10. The agent also provide copies of the applicant’s payslips from Della Rosa and Pizza@Home Pty Ltd.

11. On 13 July 2020, the applicants’ agent requested that the applicants’ daughter, born in 2018, be added to their review application. The Tribunal notes that this was not able to be done, as although the applicants’ daughter was born before the primary decisions were made, the Department was not asked to add her to the visa application until after the refusal decision had been made in relation to the applicants, and there is therefore no refusal decision in relation to her that can be reviewed.

12. On 28 July 2020, the Tribunal wrote to the applicants to invite them to a hearing on 27 August 2020, to be conducted by teleconference. The Tribunal exercised its discretion to hold the hearing by telephone as it was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

13. On 17 August 2020, the Tribunal received a response from the agent indicating that the applicants would attend the hearing, and attaching 2 witness statements from work colleagues of the applicant, confirming that they had each worked for Pizza@Home Pty Ltd, and had their employment transferred to Della Rosa in 2018, along with the applicant.

14. On 18 August 2020, the Tribunal received further legal submissions from the applicants’ agent, as follows:

    Background:

    The Nominator Pizza @ Home - it is noted that Strike off action in progress and de-registration on 6 September 2018.

    The Migration Agent advised the department responding to the Procedural Fairness letter that for simply practical reasons why Pizza @ Home Pty Ltd was closed and de-registered but that there had been a change and that the nominee was now working with the same employer and in the same position and same salary.

    The Migration Agent presented to the department that Berver Pty Ltd is an associated entity of Pizza @ Home Pty Ltd and the nominee is now currently employed with Berver Pty Ltd.

    Clearly, the Migration Agent misunderstood that Pizza @ Home Pty Ltd and Berver Pty Ltd were two separate entities. This was a fundamental error or misunderstanding on the part of the Migration Agent.

    The department was correct in stating -

    ·The associated entity needs to apply for and gain approval as a standard business sponsor in their own right to sponsor the nominee and identify the nominee in a new 457 nomination application before applying the TRT stream.

    ·The department said that the transfer of employment of nominee to an associated entity in itself will not meet the requirement of this nomination application lodged by Pizza @ Home Pty Ltd.

    The department was correct in stating -

    ·The associated entity needs to apply for and gain approval as a standard business sponsor in their own right to sponsor the nominee and identify the nominee in a new 457 nomination application before applying the TRT stream.

    ·The department said that the transfer of employment of nominee to an associated entity in itself will not meet the requirement of this nomination application lodged by Pizza @ Home Pty Ltd.

    The department is correct to say that at the time, the nominator Pizza @ Home Pty Ltd was de­registered (6 September 2018). Therefore, the nominating business was unable to demonstrate to be actively and lawfully operating in Australia.

    The applicant was not advised by the Migration Agent that Berver Pty Ltd has to do a new nomination.

    Circumstances beyond applicant's control:

    1)       The applicant's sponsor used a Migration Agent to lodge the nomination;

    2)The Migration Agent had made an error in that she suggested that a transfer of employment was in line given Brever Pty Ltd was an associated company of Pizza @ Home Pty Ltd.

    3)       The applicant was not advised that a new nomination was necessary.

    4)The applicant like many other employees of Pizza @ Home Pty Ltd formed the opinion that they were employed with the same employer at the same premises and same entitlements. The were told by the employer Pizza @ Home Pty Ltd that there was an internal restructuring.

    5)An employee generally relies on his employer - when an employee is told by an employer that he is now with an associated company, at the same place of operation , having the same supervisors, having the same entitlements, the employee accepts that as his position is safe and same as before.

    6)The applicant did not realise he had to firstly get a new sponsor and secondly lodge a new nomination.

    In Kaur (Migration) (2018) AATA 4539 (Kaur), the Department granted a 457 visa to the applicant on 13 July 2015 which was valid until 13 July 2019, based on an approved nomination of the applicant as a Cook.

    It was a condition of the applicant's visa that if her employment comes to an end, she need to get a new approved nomination by an approved sponsor, no more than 90 consecutive days from the date her employment ends.

    The Department was advised that the employee no longer works for them. The applicant advised the Department that the employer sold his business and the new owners were not prepared to continue with her sponsorship.

    In this case, the AAT found that it had a discretion not to cancel the visa, although the applicant had breached the visa condition because she had ceased employment for more than 90 days.

    The AAT in this case accepted that:

    a)the applicant had established life in Australia and have been here for some 10 years;

    b)the circumstances that led to the cancellation of her visa were not in her control;

    c)she did try in finding new employment and sponsorship/nomination in her nominated occupation.

    d)AAT gave weight to the fact that the employment was in regional Victoria; (skill shortages there).

    Considering the circumstances in Kaur's case, the Tribunal decided that the visa should not be cancelled and set aside the decision of the Department.

    It is submitted that:

    ·In the applicant's case, the new Employers Bever Pty Ltd, although associated to Pizza @ Home Pty Ltd, having the same Directors, owners, occupying the same premises and having the same entitlements, refused to sponsor the applicant.

    ·Mr Sharma needs time to arrange with his sponsor/nominator to lodge a new application. He has had discussions with a few sponsors who are ready to sponsor and nominate him.

    ·Mr Sharma has established his life in Australia with his wife and baby who is 20 months old. Mr Sharma has been here in Australia for 11 years.

    ·The circumstances that led to the cancellation of his nomination was beyond his control.

    ·Mr Sharma has applied for new jobs in the same line. He has a few employers interested in sponsoring and nominating him. However, with the Covid 19 situation things are on hold.

    It is submitted that following Kaur, the Tribunal should exercise its discretion, in light of the circumstances and grant the applicant time to approach a new sponsor/nominator to be able to lodge an application in his nominated occupation and make such orders as it thinks fit.

    Attached find the summary of Kaur's case for your easy reference.

    Kaur (Migration) [2018] AATA 4539

    Tribunal: Member Alison Mercer

    The Department of Immigration and Border Protection (the Department) cancelled the applicant's Subclass 457 visa on 12 January 2017. The applicant applied to the AAT for a review of the Department's decision. The AAT set aside the decision on 5 October 2018.

    The Department originally granted a visa to the applicant on 13 July 2015, valid until 13 July 2019, based on the approved nomination of her for the occupation of cook, made by the sponsor Happy Point Investment Pty Ltd.

    A condition of the applicant's visa was that if her employment ends, she must go no more than 90 consecutive days without a new approved nomination by an approved sponsor.[1]

    The Department received notification from Happy Point Investment Pty Ltd that the applicant no longer worked for them. The Department asked the applicant to respond to this notification and the alleged breach of a condition of the visa. The applicant explained that she lost her job through no fault of her own because the owner of the business sold it and the new owners were not prepared to continue with her sponsorship. The applicant said that she was aware of the 90 day period and searched for employment, eventually finding work as a cook with Two Leos Pty Ltd, who lodged an application with the Department for approval as a standard business sponsor and a nomination of the applicant as a cook. Two Leos Pty Ltd was approved as a standard business sponsor but the nomination was refused. The business lodged a second nomination with the Department.

    The Department considered the applicant's response but decided to cancel the visa. The Department acknowledged that a nomination by her new employer was yet to be decided but gave greater significance to the fact that more than 13 months had passed since the applicant's original employment ended.

    The applicant applied to the AAT for a review of the decision and appeared before the AAT to give evidence. Her circumstances had significantly changed since the Department's decision. The second nomination submitted by Two Leo's Pty Ltd was refused and she now had a new job as a cook with Wah ring's Restaurant Pty Ltd (Wahring's). Wahring's had lodged an application for approval as a standard business sponsor and a new nomination for the applicant as a cook. Both were still pending at the time of the AA T's decision.

    Although the AAT found that the applicant had breached the visa condition because she ceased employment for more than 90 days, it could still exercise a discretion it had to not cancel the visa. It is not mandatory to cancel a visa once the condition of the visa has been breached so the AAT had to then weigh up the reasons for and against cancelling the visa.[2]

    The applicant argued there were compelling reasons to remain in Australia. This included her current ongoing employment with an employer who strongly supported her employment. The applicant's employer strongly supported this when they appeared before the AAT. The applicant also argued that she and her family would struggle to re-establish themselves in India, and that they would be affected financially and emotionally if they had to leave, given they had lived in Australia for approximately ten years. The applicant and her husband expressed particular concern about the effect on their son, who was born in Australia and had spent most of his life here, including commencing primary school.

    The AAT accepted that the applicant had established a life in Australia, that the circumstances that led to the cancellation of her visa were not within her control and that she did try (and initially succeeded) in finding new employment and sponsorship/nomination in her originally nominated occupation. The AAT gave significant weight to the fact that the employment was in regional Victoria where there were documented skills shortages and the purpose of the subclass 457 visa which was to enable Australian employers to fill those skills shortages. Moreover, the Tribunal found that her current employer wished to retain the applicant's services, and had now successfully nominated her as an approved standard business sponsor, and that the occupation of Cook remained on the Department's Short Term Skilled Occupation List.

    Considering the circumstances as a whole the Tribunal decided that the visa should not be cancelled and set aside the Department's decision

    Read the full written decision (httP-:// bin/viewdoc/au/cases/cth/AATA/2018/4539.html). in Austlll.

    [1] Condition 8107(3)(b) of schedule 8 reg/mr1994227 /sch8.html). to the Migration Regulations 1994

    [il The AAT had regard to the relevant circumstances including but not limited to matters identified in the Department's Procedures Advice Manual PAM3 'General visa cancellation powers'.

1. The applicant appeared before the Tribunal on 27 August 2020 by teleconference to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent.  

2. As noted above, the Tribunal exercised its discretion to hold the hearing by telephone as the hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

3. At the beginning of the hearing, the applicant indicated that he would prefer, if possible, to have an interpreter in Hindi or Punjabi, although he had not requested one in his hearing response form. The Tribunal adjourned the hearing and attempted to secure the services of an interpreter in either language, but was unable to do so. After some discussion between the Presiding Member, the applicant and the agent, the applicant indicated that he would prefer to proceed with the hearing without an interpreter rather than have the hearing rescheduled to a later date with an interpreter. The Presiding Member undertook to adjourn the hearing if there were any communication difficulties.

4. The applicant confirmed the sequence of events set out in his agent’s submission. He told the Tribunal that his employer and former agent both indicated to him (and other work colleagues) that Pizza@Home Pty Ltd was ceasing operations but that their employment would be transferred with all the same terms and conditions, in the same positions, to a new company that was owned by the same owners and directors of Pizza@Home Pty Ltd. The new company was called Berver Pty Ltd (trading as Della Rosa). The applicant said that he and others were given letters setting this out, and they accepted the advice that they were given. This occurred after Pizza@Home Pty Ltd had lodged the nomination of the applicant for the subclass 186 visa. His former agent, Ms Pocze-Graf, told him that the nomination and his visa application would not be affected as his new employer was an associated company and it was an internal transfer. However, then the nomination, and subsequently the applicant’s subclass 186 visa application, were refused, which came as a shock to the applicant. He said that his former agent advised him that this would be overturned upon review, but he later came to understand that a new nomination of him should have been lodged by his new employer. The applicant told the Tribunal that he had relied in good faith on the advice he received, and the events that led to the rejection of his visa application were outside his control.

5. The applicant confirmed that his new employer advised him that it would not be able to nominate him for a subclass 186 visa, due to further restructuring, but he continued to work for them in his original position as the holder of a bridging visa with permission to work. The applicant said that he had also sought to find a new employer willing to sponsor him for a subclass 186 visa, and had several prospects. However, his ability to have job interviews had been impeded by the COVID19 restrictions currently in place in Melbourne. He told the Tribunal that he had one employer who had offered him a baking night shift position, which he was willing to undertake, but they could not have an interview until mid-September 2020 at the earliest, as this was when Stage 4 restrictions were due to be lifted in Melbourne.

6. The Tribunal noted that legally, even if the applicant were able to secure a new nomination with a new employer as a Baker, this would not satisfy cl.186.223 as this clause required that the applicant was the subject of an approved nomination by the employer who originally nominated him. In this case, that was Pizza@Home Pty Ltd, which all parties conceded was no longer actively operating a business. The applicant and his agent acknowledged this but requested again that the Tribunal defer its decision for long enough for the applicant to secure a new nomination. The Tribunal indicated that it was not obliged to do so in relation to a separate potential visa application which would not affect the outcome of the subclass 186 visa application under review, but it further indicated that it did not expect to be able to make a decision in this matter for 4 to 8 weeks due to its current workload.

7. The applicant told the Tribunal that he had been in Australia for 11 years. He came originally as a student and undertook courses in Business and Commercial Cookery (Baking) and had worked as a Baker in essentially the same role for the same employers (Pizza@Home Pty Ltd and then Della Rosa) for 9 years. His wife also undertook a Baking qualification but later undertook studies in Aged Care and currently worked in an aged care home. They had a 20 month year old daughter born in Australia and they were able to structure their shifts so that one of them was always there to look after her. The applicant said that he had spent his golden years in Australia, and it would be extremely difficult for him and his family to relocate back to India at this time.

8. The Tribunal confirmed with the applicant and his agent that the applicant felt that he had been able to clearly communicate everything he wished to tell the Tribunal. They confirmed that he did.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

10. 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.

11. 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.

12. It is not disputed that in this case, Pizza@Home Pty Ltd lodged a nomination of the applicant in 2017, but it was refused by the Department on 28 September 2018.  As noted in the Tribunal’s s.359A letter, a review application was lodged by that employer with the Tribunal but the Tribunal made a decision on 4 February 2020 that it had no jurisdiction to review the Department’s nomination refusal decision.

13. The Tribunal therefore finds that the applicant is not the subject of an approved nomination by Pizza@Home Pty Ltd.

14. It is a requirement for the Temporary Resident Transition stream (cl.186.223) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer,[1] and on current authority, even a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria.[2]

    [1] Hasan v MIBP [2016] FCCA 1049 (Judge Smith, 13 May 2016). This judgment considered cl.187.223(1)(c) but the interpretation would appear equally applicable to almost identically worded cl.186.223(1)(c) and cl.186.233(1)(c).

    [2] That is also the interpretation reflected in Departmental policy: PAM3: Employer Nomination Scheme (subclass 186)  - visa applications – [8.1.3] TRT – Position must be that for which the visa application was made and [9.1] DE Linking the position applied for to the one nominated (policy reissued 13 April 2018).

15. This was the view taken in Singh v MIBP [2017] FCAFC 105[3] (which concerned an almost identically worded criterion for a subclass 187 visa). The Court considered whether it would be futile to grant relief to the applicant if an argued s.359A error were made out, where the visa application was refused on the basis that the associated nomination had been refused. The Court reasoned that the words in cl.187.233 refer to a factual event, that is, whether an employer nomination had been made, and about which the visa applicant made the required declaration in the visa application, meaning even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one in relation to which the declaration was made. Further, the ‘position’ referred to is a particular position that exists at the time at which the employer nomination is submitted for approval.[4]

    [3] Singh v MIBP [2017] FCAFC 105 (Judge Mortimer, 14 July 2017), at [88].

    [4] See also Kaur v MIBP [2017] FCCA 564 (Judge Lucev, 29 March 2017) which also considered whether the applicant could meet 186.223 in circumstances where the associated nomination had been refused. Similarly, the Court reasoned that even if the applicant were able to obtain a further nomination for the same position from their employer this new nomination would not be the one to which the Schedule 1 declaration was made. Singh v MIBP [2016] FCCA 2229 (Judge Riley, 12 August 2016), also concerned the equivalent requirements for a Subclass 187 visa. In that matter the Court followed the interpretation of cl.187.233(1)(b) adopted in Hasan (at [33]-[34]), yet appeared to go somewhat further by commenting that ‘any nomination for a position that the applicant could now obtain would not satisfy cl.187.233’ (at [35]). Note, in contrast, that in Khanom v MIBP [2016] FCCA 3259 (Judge Smith, 16 December 2016), the Court appeared to implicitly accept that a second nomination by the same employer in respect of the same position could satisfy cl.187.233, when considering whether the Tribunal had acted reasonably in refusing to await the outcome of that second nomination application.

16. Although the Court’s comments were strictly obiter, they are nonetheless persuasive in relation to subclass 187 visas. As the relevant subclass 186 criteria are in the same terms, the Court’s reasoning also appears applicable to cl.186.223 and cl.186.233. It follows from this that in practice where a nomination is refused, the visa applicant will not meet cl.186.223 or cl.186.233 (as applicable) unless there is also a review of that decision pending.  

17. As discussed at the hearing, the Tribunal has considered the case to which it was referred by the agent, Kaur (Migration) (2018) AATA 4539 (Kaur), but finds that it relates to a cancellation case. In cancellation cases, the relevant sections of the Act and Regulations provide a legal discretion on the part of the decision-maker not to cancel the visa, even if the cancellation grounds are made out. This is not the case here, where the applicant’s review application involves a subclass 186 visa refusal.

18. Accordingly, the Tribunal must find that cl.186.223 is not met. This means that the applicant does not meet the criteria for a subclass 186 visa.

19. 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.

20. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 186 visa, as it finds that she does not meet the secondary visa criteria in cl.186.311 to be a member of the family unit of a person who holds a subclass 186 visa, and there is no evidence before the Tribunal to suggest that she meets the primary visa criteria in her own right.

21. The Tribunal acknowledges the points made by the applicant regarding the fact that he trusted his former agent and employer’s incorrect advice that his subclass 186 visa application did not require a new nomination by Della Rosa, as a new employer, that he effectively continued in the same job despite the technical change of employer, and that he and his wife have been living and working in Australia for a considerable number of years, for the last 20 months with their young daughter. While it has sympathy for the applicants’ situation, it has no discretion to take these factors into account to waive or overlook the requirements of cl.186.223. The Tribunal notes, however, that it is open to the applicants and their agent to consider making a request directly to the Minister pursuant to s.351 of the Act (which confers a non-compellable, personal discretion on the Minister to grant a visa after an unsuccessful Tribunal review), if they believe that they have unique or compelling circumstances that would justify this (examples of which are set out in the Ministerial intervention guidelines found on the Department’s website: >

    The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Alison Mercer
    Member

    
    

    ATTACHMENT A

    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.