Thipirisetty (Migration)

[2021] AATA 1467

Thipirisetty (Migration) [2021] AATA 1467 (29 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Naveen Kumar Thipirisetty
Mrs Nagamani Tadishetty
Miss Aadya Thipirisetty

CASE NUMBER:  1723392

HOME AFFAIRS REFERENCE(S):          BCC2015/3028215

MEMBER:Phoebe Dunn

DATE:29 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 29 April 2021 at 12:27pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – ICT Sales Representative –nomination refused– tribunal affirmed nomination decision –not the subject of an approved nomination –referral to the Minister refused – no unique and exceptional circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351, 359,375A, 376
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311

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 Immigration and Border Protection on 20 September 2017 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 16 October 2015. 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 the Temporary Residence Transition stream, to work in the nominated position of ICT Sales Representative (ANZSCO 225213).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because the related nomination lodged by the Trustee for the VR Telepoint Trust (the nominator), being the nomination referred to in cl.186.223(1) nominating the applicant to work in the nominated position (the nomination), was refused by a delegate on 31 July 2017 and as such there was no approved nomination.

6. On 5 March 2021, the Tribunal wrote to the applicants in accordance with the requirements of s.359A of the Act, inviting the applicants to comment on or respond to information that the Tribunal considered was adverse to the applicants’ case. In its letter, the Tribunal provided particulars of the adverse information, explained the relevance of it and outlined the consequences of the Tribunal relying on the information, being that on 2 March 2021, the Tribunal affirmed the decision to refuse the nomination and that this meant that the nomination related to the visa application has not been approved. The Tribunal stated that this information was relevant to the review because it is a requirement for the grant of a Subclass 186 visa in cl.186.223(2) that the related nomination has been approved, and that if the Tribunal relied on this information in making its decision, it would be the reason or part of the reason for affirming the decision under review.

7. The Tribunal invited the applicants to comment on or respond to the information or to seek an extension of time to do so, by 19 March 2021.

8. In its letter dated 5 March 2021, the Tribunal also informed the applicant about a certificate issued under s.375A of the Act (since revoked) and two certificates issued under s.376 of the Act (both current) on the Departmental file. The Tribunal’s letter stated as follows:

   1. Revoked section 375A certificate

   The Department’s file contains a certificate issued on 22 November 2019 pursuant to s.375A of the Act, which was revoked by the Department on 20 February 2020 on the basis that the original certificate was invalid because it did not provide sufficient reasons for non-disclosure on public interest grounds. A copy of the original certificate, together with the revocation certificate, is attached.

   The revoked certificate related to the ‘Stream 2b Pre Decision Verification – Site visit plan’ contained in TRIM reference OPD2017/24960 of file number BCC2015/3017098 (the Site Visit Plan). As the certificate has been revoked, the Tribunal is releasing a redacted copy of the Site Visit Plan, noting that this has previously been provided to the nominating business in the context of the review of the decision to refuse the related nomination application (Tribunal file 1717551).

   However, the Tribunal has considered the information in the Site Visit Plan and does not consider it to be relevant to the determinative issue on review, being whether the related nomination has been approved as required by cl.186.223(2). Accordingly, the Tribunal will not be placing any weight on the information in the Site Visit Plan in reaching a decision on this review.

   Notwithstanding this, if you wish to make any submissions concerning the Site Visit Plan, please send your written submission to the Tribunal by 19 March 2021.

   2. Section 376 certificate

   The Department’s file contains a certificate issued on 20 November 2019 pursuant to s.376 of the Act, which applies to the source information received in the Border Watch Allegations and Referral Team via web form on 8th March 2016 and 24 November 2016 of TRIM reference number OPD2019/506471 of file number BCC2015/3028215 on the basis that disclosure of the material would be contrary to the public interest because it may disclose or enable a person to ascertain the existence or identity of, a confidential source of information. A copy of the certificate is attached.

   The Tribunal considers the certificate to be valid. However, the Tribunal has carefully considered the information covered by the certificate and does not consider it relevant to the determinative issue on review, being whether the related nomination has been approved as required by cl.186.223(2). Accordingly, the Tribunal will not be placing any weight on this information in reaching a decision on this review and as such has determined not to exercise its discretion to release the information covered by the certificate.

   Nonetheless, if you wish to make any submissions concerning the certificate, including but not limited to its validity and the exercise of the Tribunal’s discretion not to release the information covered by the certificate, please send your written submission to the Tribunal by 19 March 2021.

   3. Further Section 376 certificate

   The Department’s file contains a certificate issued on 16 November 2017 pursuant to s.376 of the Act, which applies to documents contained in TRIM reference number ADD2017/3569874 (pages 4-7, page 9) of file number BCC2015/3028215 on the basis that disclosure of the material would be contrary to the public interest because it may reveal confidential departmental investigative methods used to detect breaches of the law. A copy of the certificate is attached.

   The Tribunal does not consider the certificate to be valid as it has not been validly signed. However, the Tribunal has carefully considered the information covered by the certificate and does not consider it to have any bearing on the Tribunal’s consideration of the determinative issue on review, being whether the related nomination has been approved as required by cl.186.223(2). Accordingly, the Tribunal will not be placing any weight on this information in reaching a decision on this review and as such has determined not exercise its discretion to release the information covered by the certificate.

   Nonetheless, if you wish to make any submissions concerning the certificate, including but not limited to its validity and the exercise of the Tribunal’s discretion not to release the information covered by the certificate, please send your written submission to the Tribunal by 19 March 2021.

9. The applicants responded by letter dated 16 March 2021 and made further submissions on 24 March 2021.

10. The applicants, represented by Mr Naveen Thipirisetty, appeared before the Tribunal on 14 April 2021 to give evidence and present arguments.

11. The applicants were represented in relation to the review by their registered migration agent and lawyer, Mr Badrinath Thungathurthui. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether there is an approved nomination.

14. In submissions dated 16 March 2021 and 24 March 2021, the applicant has made submissions addressing the issues raised in the Tribunal’s letter dated 5 March 2021, which can be summarised as follows:

    a.The failure by the nominating business to meet the training benchmark requirements should have been disregarded because it was reasonable in the circumstances to do so;

    b.The nominator rectified the failure to meet the training benchmark requirements by making payments in arrears and this is appropriate and acceptable;

    c.The Tribunal should exercise its discretion to disregard the failure of the nominator to meet the training benchmark commitments and obligations to reach a favourable decision for the applicants in this case;

    d.The applicants should not be punished because of issues relating to the nomination application;

    e.In relation to the revoked s.375A certificate, it appears from the invalid certificate that the officer took irrelevant considerations into account in deciding the nomination application at first instance and were predetermined in their decision:

    i.The applicants are of the view that irrelevant considerations were taken into consideration by the original decision maker;

    ii.The officer (during the interview with the applicants and the owner of the nominating business) made several presumptions of a subjective nature when putting allegations to the nominee, without further enquiry;

    f.In relation to the s.376 certificate (dated 20 November 2019) the applicant states that the complaint is vexatious and submits that qualified disclosure of the allegation is not provided to the applicants to comment;

    g.In relation to the further s.376 certificate (dated 16 November 2017), the applicants submit that as the certificate is not validly signed, the Tribunal must disregard it and it should not have any bearing on the issue, or give rise to any preconception or predetermined point of view about the certificate as it could impugn the impartiality and open-mindedness necessary to make correct and sound determinations in the application of the law; and

    h.It is in the best interests of the family, in particular the child, that the family stay in Australia and the applicants request that the Tribunal disregard the requirements relating to training benchmarks due to the peculiar circumstances, or in the alternative, if the Tribunal cannot make a ‘set aside’ decision, that the Tribunal delays making a decision until the FCCA makes a decision on the related nomination, noting that they intend to apply for judicial review of the Tribunal’s decision to affirm the related nomination decision.

15. At the hearing of this matter, the Tribunal explained that the question before the Tribunal in this case was whether the applicant meets the requirements in cl.186.223(1), and that this was a question of fact. The Tribunal outlined again the terms of the s.359A letter, noting that as the related nomination decision had been affirmed on review, this meant that there is no approved nomination as required under cl.186.223(2) and that this would be the reason or part of the reason for affirming the decision in relation to the applicant.  The Tribunal also explained that it would be the reason, or part of the reason, for affirming the decision in relation to the secondary applicants because their claims are as members of the family unit of the applicant and it is a requirement in cl.186.311 that the applicant has been granted a Subclass 186 visa.  The Tribunal noted the extensive submissions received from the applicant and provided an assurance that the Tribunal would be taking those submissions into consideration in reaching a decision on this matter.  The Tribunal noted, however, that the majority of those submissions raised issues relating to the nomination application, not the applicant’s Subclass 186 visa application, and as such were not relevant to the question before it in this review application, being whether the related nomination had been approved. The Tribunal noted that in considering the merits of the applicant’s Subclass 186 visa application, the Tribunal could not reopen consideration of the related nomination application.

16. The Tribunal invited the applicant to provide oral evidence addressing the issues raised in their submissions. In response, the applicant stated that he understood the basis of refusal of the nomination and this this meant that the nomination had not been approved. He stated that the nominator made small errors regarding the training benchmarks and had tried to rectify these errors by making payments in arrears.

17. The Tribunal noted the applicant’s submissions in relation to the s.376 certificate issued on 20 November 2019 that the applicants had not been given an opportunity to comment because qualified disclosure had not been made. The Tribunal reiterated that while it considered that the certificate was valid, it did not consider the information covered by the certificate had any relevance to the matters before it on review and as such had determined not to disclose it. The Tribunal stated, however, that but because the applicants appeared to be suggesting that they had not had a meaningful opportunity to respond, to ensure procedural fairness, the Tribunal would provide the gist of the information.  The Tribunal noted again that it will not be placing any weight on the information in reaching its decision as the Tribunal does not consider it relevant to the determinative issue on review before it, being whether there is an approved nomination.

18. The Tribunal outlined the gist of the information as follows:

    The Department received allegations in confidence on 8 March 2016 and 24 November 2016, which indicate that the nominee has not been working for VR Telepoint Pty Ltd in the position of ICT Sales Representative, and the position is not genuine. The particulars are:

    a.The nominee does not work for the applicant and instead works for other businesses and/or people on a cash basis, including a courier company;

    b.The employment arrangements between the applicant and the nominee are fake;

    c.The nominee pays his own tax and super; and

    d.The nominee runs a number of cash operated businesses.

    The Department received allegations in confidence on 8 March 2016, which indicate that the applicant has engaged in possible payment for visa arrangements with the nominee. The allegations include:

    e.The applicant received payment from the nominee for visa sponsorship of $50,000 or more.

19. In response, the applicant stated that he doesn’t know who gave that information or why anyone would say those things and that it was not correct.  He stated that there was no way he could afford to pay that kind of money for a visa.  He stated that he used to work for a different company before the nominating business, but from the day he secured the Subclass 457 visa he has not worked anywhere else.  He stated that in his role as ICT Sales Representative (the nominated position) he is often required to be on the road to travel to clients, deliver goods and the like, but he is not involved in a courier business.  He stated that he does not pay his own tax or superannuation and he is not sure why anyone would suggest that. He stated that on the day of the site visit he was offsite with a client and was confused and unsure whether it was a legitimate call or a hoax and that is why he was a bit hesitant in his responses. He stated that his wife was in the final stages of pregnancy and the nominator had allowed him to spend some time with her.  He stated that he has submitted all the evidence to show that he works for the nominator full-time in the nominated position.

20. The Tribunal noted again that the Tribunal would not be placing any weight on the information covered by the certificate.  The Tribunal noted again that the issue before it was a question of fact, being whether the related nomination had been approved and that this was not a question on which the Tribunal had any discretion.  The Tribunal noted that the applicant’s work history and character were not under consideration before the Tribunal in this instance. 

21. The applicant’s representative questioned why the Tribunal could not consider the submissions he had made regarding the nomination application, being that it was reasonable to disregard the failure of the nominator to meet training benchmark commitments and obligations for the reasons outlined in the submissions and find in favour of the applicant in this case. The Tribunal reiterated that it had carefully considered the submissions but that the question before the Tribunal was whether there was an approved nomination and that this was a question of fact, and submissions relating to the merits of the nomination application or the decision in relation to the nomination application were not relevant in this context. The applicant’s representative noted that they had lodged an appeal to the Federal Circuit Court in relation to the nomination application.

22. The Tribunal noted the power of the Minister in s.351 of the Act to set aside decisions and substitute a decision favourable to applicants where there are unique and exceptional circumstances.  The Tribunal afforded the applicants two weeks to provide post-hearing submissions addressing the Minister’s power in s.351 of the Act, should they wish to do so, with submissions due by 28 April 2021.  The applicants responded with a submission dated 22 April 2021.

    Nomination of a position

23. 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.

24. 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 of the Regulations); 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.

25. The applicant applied for the Subclass 186 visa on the basis of the nomination lodged by the nominator, in respect of the nominated position of ICT Sales Representative (ANZSCO 225213).  The delegate refused to grant the visa because the applicant did not meet cl.186.223(2), because the related nomination lodged by the nominator, being the nomination referred to in cl.186.223(1), was refused by a delegate on 31 July 2017 and as such there was no approved nomination.

1. The nominator applied for review of that decision but on 2 March 2021, the Tribunal affirmed the decision in relation to the nomination on review. This means that the related nomination has not been approved as required by cl.186.223(2). It follows that cl.186.223(2) is not met.

2. Following careful consideration of the information before it, including the applicants’ oral and written submissions before the Tribunal, the Tribunal finds that cl.186.223(2) is not met.

3. Therefore, cl.186.223 is not met.

4. 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.

5. The only basis of the applications of the second and third named applicants is that they are members of the family unit of the person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa: cl.186.311(a).  As the applicant does not meet the primary criteria and has not been granted a Subclass 186 visa, the decision to refuse the applications of the second and third named applicants must also be affirmed because they do not satisfy cl.186.311.

   Ministerial Intervention

6. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

7. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of the 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.

8. 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.

9. The Tribunal takes the issue of recommending referral of any matter to the Minister seriously. It notes that the theme running throughout the relevant Ministerial Guidelines on this matter is that the case should involve unique or exceptional circumstances which would warrant the Minister’s intervention. The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention.

10. The Tribunal notes that not every case is appropriate for referral, regardless of the contributions made by the individuals or feelings of sympathy for those concerned. This is because there are many applicants who fail to meet the legislative criteria for a visa and who nevertheless wish to remain permanently in Australia. The guidelines indicate that the circumstances must be unique or exceptional to warrant consideration.

11. The applicants have made the following submissions and provided the following documentation in support of their request that the Tribunal exercise its discretion to refer the matter to the Minister for Ministerial Intervention on the basis that there are ‘strong compassionate circumstances that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian business’ (emphasis added):

    The above applicant is working and living legally with his family in Australia from last 12 years which is substantial period of human life.

    Since last 8 years Business is completely dependent on this person for sales. This Employee is known to all stakeholders and in Telecommunication industry as a representative of VR Telepoint. Replacing such an Experienced, reliable, honest, Trustworthy, and reputed person in the Industry in this unpredictable COVID times is next to impossible.

    Even during COVID Environment, the business could be able to trade profitable only due to company’s reliable workforce. It will be a Huge loss to company and to country in losing a Talented person.

    Government needs to support Australian Businesses to compete Internationally. Acting strictly for small Errors, will jeopardise, The Business. Strong workforce is a key backbone to company. Without good work force Business cannot compete and survive in this unpredictable time. The Regulation, Explanatory statement has given a leave way for small errors to disregard.

    My Client is been found to be of good character and a responsible family man with Australian born infant child. Thera (stet) are no other instances of non- compliance by the visa holder which is known to the minister.

    This young family is honest, with caring friends who always offer to help others. It is truly a privilege to know them. This young, devoted parent, have embraced residing in Australia, enjoying the Australian way of life and customs, and always ensuring that their child received the best care and education.

    In additional to work, this visa-related stress is leading to depression and anxiety to my client. This is adversely affecting his health with no-fault of his, it is distressing, or even traumatising, this can especially be the case if there is a feeling that it is someone’s fault.

    The Visa refusal decision will jeopardise his ongoing employment and carrier (stet), will impact upon my client, and would result in serious, ongoing, and irreversible harm and continuing hardship.

    My Client met all the obligation of an employee to behave honestly, the requirement that the employee perform their work to the best of his ability, the obligation to act in the interests of the employer and the obligation to follow reasonable and lawful directions. My client is happy with his employer statutory entitlements and support.

12. The applicants have provided the following additional information for the Minister’s consideration:

    a.The applicant does not have control over his current circumstances due to his employers ‘minor errors of payment towards Training Benchmark. Latter (stet) corrected and paid all the amount towards Training Benchmark “A” in Arrears’;

    b.The applicant has been working for the nominator for more than seven years continuously and is a trusted employee, ‘Australian workers life is based on a ‘no-fault’ principle. This means you do not have to establish that your employer was at fault or negligent which is affecting employee personal life….The fact is that even the employer did not anticipate this visa refusal due to his minor error. My client should not be penalized in the form of visa refusal, for over which he had no control’;

    c.A chronology of events relating to the nomination application and refusal;

    d.Arguments relating to the basis of refusal of the related nomination and the Tribunal’s subsequent decision to affirm that decision on review:

    •     The nominator has demonstrated that he met Training Benchmark “A” which are paid in arrears. The nominator paid more than 2% required in all the years from the date of SBS Approval.

    •     It was a Normal process in those days for Department to accept Training Benchmark Paid in arrears.

    •     We have confirmed with Sydney Institute of TAFE, before paying for Benchmark "A". They have been advised by Department that arrear payments are acceptable.

    •     The Training Institute, where the nominator paid for Training Benchmark " B" is closed and could not be able to obtain any further evidence to substantiate his claims is the main reason for paying Training Benchmark "A" in arrears.

    •     There are several cases where Department accepted Training Benchmark "A" paid in arrears.

    •     It is legal for all Federal Government agencies to accept some payments in arrears.

    •     The nominator (VR Telepoint) has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

    •     There was minor error in payments towards Training Benchmark’s. Benchmark trainings which were unknowingly done is unintentional, latter on which was paid in full and rectified the error.

    •     In year 2017 lawmakers of Australia discovered that, there were some anomalies in the instrument itself regarding Skilling payments made for Training Benchmarks and Training Requirements for ENS (Subclass 186) visa programs. In this regard, Lawmakers have repealed the old instrument (IMMI 13/030) (F2013L01236) and brought new Migration (IMMI 17/075) with New Training Benchmark Requirements for Subclass 186 (Employer Nomination Scheme) Visa Programs and created Skilling Australians Fund (SAF), which allow the nominator to pay directly to government established Skill fund at the time of lodging new nomination, rather than paying to education institute

    •     To avoid calculation error in benchmark training payment, this new training fund contribution model was effective from 12 August 2018, which aims to make compliance and monitoring simpler by removing the need to maintain complex records to demonstrate expenditure to meet the current training benchmark requirements and replacing it with a levy paid to the Skilling Australians Fund (SAF)

    •     The Nominator fulfilled the Training Requirement, the nominator has demonstrated meeting a combination of both Training Benchmark A and B in a required year, but Training Benchmark A is paid in arrears. The nominator paid more than 2 % required in all the years from the date of SBS Approval

    •     For Training Benchmark “A” paid in arrears, nowhere, it is mentioned that the training Benchmark cannot be paid in Arrears at the time of application

    •     Department use to accept Payment in arrears

    •     The Payment is paid to Sydney TAFE, we have confirmed with TAFE regarding payment in arrears.

    •     We were told that the TAFE has information from Department that it is acceptable for payment in arrears

    •     We have confirmed with Sydney Institute of TAFE, before paying for Benchmark "A". They have been advised by Department that arrear payments are acceptable

    •     The Training Institute, where the nominator paid for Training Benchmark " B" is closed and could not be able to obtain any further evidence to substantiate his claims is the main reason for paying Training Benchmark "A" in arrears

    •     It is legal for all Federal Government agencies to accept some payments in arrears.

    •     Mr. Thipirisetty responded and cooperated with the department in relation to the hearing).

13. The Tribunal notes that the Minister’s Guidelines refer to unique and exceptional circumstances, which include, relevantly:

    ·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 your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship; and

    ·Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results.

14. The Tribunal notes that the applicants are requesting that consideration be given to a referral to the Minister for consideration of the exercise of his s.351 powers on the basis of the impact on an Australian business. While the Minister’s Guidelines are not exhaustive, they are indicative of the nature of the information required for the Minister to give due consideration to any request. The Tribunal notes and has considered the applicant’s submissions regarding the length of employment with the nominating business and the impact it would have on the business if the decision to refuse the applicant’s visa is affirmed, particularly in the context of the COVID-19 pandemic.  The Tribunal acknowledges that there will be an impact on the applicant’s current employer should the decision be affirmed. However, aside from the applicant’s written submissions, no other documentation has been provided to the Tribunal to support these claims and the Tribunal does not consider it has sufficient documentation and information before it to determine whether this is an appropriate case to refer to the Minister consistent with the Ministerial Guidelines.

15. The Tribunal notes that the majority of the applicant’s submissions relating to Ministerial Intervention reiterate their submissions regarding the decision to affirm the related nomination on review and go to the substance of that decision.  The Tribunal notes and has considered the applicant’s submission that he had no control of the circumstances that led to the nomination decision being affirmed on review. To the extent that these submissions address the ground that the application of the relevant legislation would lead to unfair or unreasonable results, the Tribunal has carefully considered these submissions but does not consider these circumstances to constitute unique and exceptional circumstances of the type that would warrant intervention on this ground. The Tribunal also notes and has considered the applicant’s submissions regarding the impact on his health and career as a consequence of the decision to refuse the nomination application based on circumstances beyond his control. The Tribunal acknowledges that the circumstances are difficult and very stressful for the applicants but does not consider it has sufficient information before it to assess whether there are unique and exceptional circumstances in this context to warrant referral to the Minister on this ground.

16. Accordingly, having regard to all the evidence before it, the Tribunal has decided not to refer the matter to the Minister.

17. The Tribunal notes that the applicants can still make a request directly to the Minister.

    DECISION

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

    Phoebe Dunn
    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.