Soares Bittencourt (Migration)

[2021] AATA 3833

Soares Bittencourt (Migration) [2021] AATA 3833 (22 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Marcelo Soares Bittencourt
Ms Vania Hobus

CASE NUMBER:  1904314

HOME AFFAIRS REFERENCE(S):          BCC2017/2139927

MEMBER:Karen McNamara

DATE:22 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 22 September 2021 at 11:27am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cook – no approved nomination – business changed ownership – sponsor’s family illness – referral for Ministerial Intervention – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 187.233, 187.311; r 1.13

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 17 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant Mr Marcelo Soares Bittencourt (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO 351411).

5. The decision record provided to the Tribunal by the applicant, records that the delegate refused to grant the visas because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations, which required, Mr Marcelo Soares Bittencourt to be the subject of an approved nomination. The delegate found that the nomination lodged by Boyd, Jonathon Phillip Trading As Legend Pizza (the nominator) was refused on 28 June 2018.

6. Accordingly, as the nomination application had been refused, the delegate found that cl.187.233(3) was not met and therefore the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

7. The delegate also found that the second named applicant, Ms Vania Hobus could not be granted a Subclass 187 visa, as she did not meet the secondary visa criterion (cl.187.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa.

8. The applicants applied to the Tribunal on 25 February 2019 for review of the delegate’s decision.

9. On 6 August 2021, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 to appear before the Tribunal via telephone on 9 September 2021 at 12:30 pm.

10. On 13 August 2021, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. 

11. The information related to information before the Tribunal that shows on 7 April 2021, the Tribunal affirmed the Department's decision not to approve the nomination in relation to the applicant made by the nominating employer, Boyd, Jonathon Phillip.

12. The Tribunal’s letter dated 13 August 2021 additionally stated the following:

    ‘ The above information is relevant because cl.187.233(3) requires that the nomination

    made in relation to you by your nominating employer has been approved.

    If the Tribunal relies on this information, it may not be satisfied that your application

    meets the requirements of cl.187.233(3) and consequently the decision under review would be affirmed.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 27 August 2021. If the comments or
    response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 27 August 2021, you may
    ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 27 August 2021 and you must state
    the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 6 August 2021.
    Please note, however, that if you do not respond to this letter within the date specified or within any extended timeframe, you will lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal will proceed to make a decision on the review without taking any further action to obtain your views on the information.’

13. On 25 August 2021, the applicant’s representative provided to the Tribunal a submission from the applicant requesting Ministerial Intervention. The submission noted inter alia “ We might have made mistakes, we might have been poorly helped by our first agent but reality is I am still working in the same company, in the same position, providing the same service to community in Byron Bay as when it all started nearly 6 years ago and the fact that today the very same business called Legend Pizza Byron Bay operates with a different ABN number, as it has been under a new ownership for two years now…”

14. Mr Marcelo Soares Bittencourt appeared on behalf of the applicants, before the Tribunal via telephone, on 9 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Scott Levy, the current owner of Legend Pizza and employer of the applicant.

15. The Tribunal exercised its discretion to hold the hearing by telephone. 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.

16. The applicants were represented in relation to the review by their registered migration agent. The representative did not attend the hearing.

17. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the applicant meets the requirements of cl.187.233 of Schedule 2 to the Regulations.

    Nomination of a position

20. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

21. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·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.

22. At the hearing of 9 September 2021, the Tribunal explained that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration regulations are satisfied. In order to meet cl.187.233, the applicant must be subject of an approved nomination.

23. The Tribunal invited the applicant to address the hearing in so far as there being no evidence of the applicant being subject of an approved nomination. The applicant told the Tribunal that he has worked for the business in the position of Cook since December 2015. At the time of the nomination application (8 June 2016) the business was owned and operated by Mr Jonathon Boyd and traded as Legend Pizza. In 2019 Mr Boyd sold the trading business to Mr Scott Levy who continues to own and operate the business under the entity Byron Pizza Pty Ltd. The business continues to trade under the business name Legend Pizza.

24. In providing evidence to the Tribunal, Mr Levy told the Tribunal he has been absent from the business due to caring for his chronically ill young son who is undergoing medical treatment for cancer. In Mr Levy’s absence, he is heavily reliant upon the applicant to operate the business and take charge of the kitchen. Due to the transient nature of the Byron Bay workforce it has been extremely difficult for Mr Levy and the former owner Mr Boyd, to attract and retain reliable and competent staff such as the calibre of the applicant. The loss of the applicant from the business, particularly whilst Mr Levy is caring for his ill child, will have a detrimental impact on the business and additional stress Mr Levy does not need at the moment, as his priority is his child’s health. Mr Levy told the Tribunal that had he known that his purchase of the business would have a detrimental impact on the applicant’s visa application, he would have reconsidered the purchase. 

25. The applicant in his submission (undated) received by the Tribunal on 25 August 2021 requested the Tribunal refer this matter to the Minister for his consideration. This was discussed at the hearing with the applicant, who confirmed that the Tribunal take into consideration the unique and exceptional circumstances as presented during the hearing and in the prehearing submission of 25 August 2021.

26. The Tribunal has carefully considered the evidence before it and acknowledges the circumstances as submitted by the applicants pertaining to the sale of the nominating business since the lodgement of the nomination application.  

27. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl 187.233(3) of Schedule 2 to the Regulations.

28. As the applicant does not meet an essential criterion for the grant of a subclass 187 visa, cl.187.233 of Schedule 2 to the Regulations is not met.

29. There is no evidence before the Tribunal to indicate that the secondary applicant meets the primary requirements for grant of the visa.

30. As the first named applicant is found not to have met the prescribed criteria for a subclass 187 visa, the second named applicant Ms Vania Hobus as a member of Mr Marcelo Soares Bittencourt’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.187.311.

31. The applicants have only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    Request for referral to the Minister

32. The Tribunal has no discretion to waive the specific requirements in cl. 187.233 which prescribe the only ways in which that clause can be met. Nor does the Tribunal have the power to waive or overlook this requirement or to substitute its own opinion in relation to the merits of this case.

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

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

35. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.

36. The circumstances which may be unique or exceptional in this case include, relevantly:

    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.

    Is this an appropriate case to refer to the Minister?

37. As noted earlier, the applicants have provided evidence to the Tribunal in support of their request pursuant to s.351 of the Act, that the Tribunal consider referring the matter to the Minister for his consideration.

38. In this case, since lodging the review application, the assets and employees of the applicant's nominating employer were acquired by a different entity (Byron Pizza Pty Ltd). Despite the acquisition, the applicant has maintained the same position since December 2015 as a Cook (ANZSCO 351411) and his duties and working conditions remain as they did prior to the sale of the nominating business. The acquiring entity has retained the same business location and operations.

39. The Tribunal notes evidence before it, supporting that the applicant and his wife have integrated into the Australian community and through no direct fault of the applicants, the nominating business was sold. Evidence before the Tribunal supports that the applicant is regarded by his current employer to be a highly valued and skilled employee and his employer wishes to continue his employment and support his subclass 187 visa application. The business has attempted to recruit locally without success and will struggle to replace the applicant should the applicant not be granted a visa.

40. Having regard to the circumstances of the applicant as outlined above, the Tribunal considers that the application of the relevant legislation leads to unfair or unreasonable results in the applicants’ case. Accordingly, the Tribunal considers this case should be referred to the Department to be brought to the Minister's attention.

41. The Tribunal therefore requests that the matter be referred to the Department to be brought to the Minister's attention.

    DECISION

42. The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    187.233(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:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.