Huang (Migration) [2020] AATA 5255 (11 December 2020)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Ms Mei-Ya Huang
CASE NUMBER:	1924825
HOME AFFAIRS REFERENCE(S):	BCC2018/1119255 
MEMBER:	Phoebe Dunn
DATE:	11 December 2020
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 11 December 2020 at 9:44am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct entry stream – related position nomination refused – no application to tribunal for review – applicant’s work skills, personal qualities and long employment – previous franchisee sponsor ‘disappeared’ and new owners rely on applicant – no circumstances to warrant referral for ministerial consideration – decision under review affirmed

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 187.233

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).
2.  	The applicant applied for the visa on 8 March 2018. 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 (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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Baker (ANZSCO 351111).
5.  	The delegate refused to grant the visa because the applicant did not meet cl.187.233(3) of Schedule 2 to the Regulations because the related nomination application by D&G Futures (NT) Pty Ltd (the nominator), being the nomination referred to in cl.187.233(1) (the nomination), was refused by a delegate of the Minister on 17 July 2019 and as such there was no approved nomination.
6.  	The applicant appeared before the Tribunal on 28 October 2020 by telephone to give evidence and present arguments. The Tribunal also heard evidence from Mr Mohammad Rokonojjaman, the current owner of the business where the applicant works and Ms Sophia Tamal, the business manager, who appeared as witnesses for the applicant.
7.  	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 applicant. 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 applicant was given a fair opportunity to give evidence and present arguments. 
8.  	The applicant was represented in relation to the review by her registered migration agent, Mr Xiao Huang, who attended the hearing.
9.  	Post hearing submissions were received from the applicant on 10 and 11 November 2020, regarding referral of the matter for Ministerial Intervention under s.351 of the Act. 
10.  	For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
11.  	The issue in the present case is whether there is an approved nomination.
12.  	In advance of the hearing, the applicant made submissions and provided extensive documentation in support of her application. This includes the following:
a.	Submission detailing the history of the matter and providing detail about what the applicant wished to say at the hearing;
b.	Information regarding the applicant’s skills to undertake the nominated position, including:
i.	Updated CV;
ii.	Portfolio;
iii.	Muffin Break Project; 
c.	Information regarding the applicant’s employment: 
i.	Reference from Foodco, the franchisor;
ii.	Reference from the current owner/franchisee;
iii.	Customer feedback 1;
iv.	Customer feedback 2;
v.	Customer feedback 3;
d.	Information about the applicant’s qualifications: 
i.	Certificate III in Retail Baking from Charles Darwin University (award and results);
ii.	Diploma of Hospitality Management (award and results);
iii.	Bachelor of Arts in Spanish;
e.	Information about the applicant’s industry training: 
i.	Training Certificate - Difficult conversations in the workplace - manager course;
ii.	Training Certificate - Hiring employees;
iii.	Training Certificate - Managing employees;
iv.	Training Certificate - Record-keeping and pay slips;
f.	Information about the applicant’s community involvement and integration: 
i.	Donation Tax Receipt from World Wide Fund for Nature for FY2020 - donation for animals injured in the bush fires in 2019.
13.  	At the hearing of this matter, the applicant gave detailed oral evidence about the background and history to her application, expanding on her written submission.  The applicant stated that she loved Australia and was committed to staying and working in a remote community. She stated that she had worked for the same business, a Muffin Break franchise in Darwin,  for many years and was still working for the business.  She stated that her employers have always been very happy with her work ethic and output and she has received many compliments and positive feedback from her employers, other employees and customers over many years.  She stated that the issues with her application occurred when her sponsor advised on 1 April 2018 that the business was going to be closed down and then subsequently disappeared.  She stated that she immediately notified the franchisor parent company, which came in and took over the business. During this period, despite the issues with her nomination application, she worked hard and took initiative to help turn around the business and support the owners.  She stated that she is still working for the same business, under new ownership.  She stated that despite all the challenges she has experienced she has maintained a positive mindset and has always worked hard to support her employers, helping them to turn around the business with her baking skills as well as her hospitality skills.  She stated that she felt she had a duty to stay with the business and had learned a lot under each employer and was grateful for the opportunity they had given her and for the community that nurtures her.  She stated that she wanted an opportunity to stay in Australia to capitalise on her experience and to continue to contribute to her local community and to building a better Australia. 
14.  	At the hearing, the Tribunal explained that the key issue in this case is whether there is an approved nomination.  The Tribunal noted that it had carefully considered the submissions and supporting documentation received from the applicant and that it was clear that she has relevant qualifications and experience and was a valued and trusted employee.  The Tribunal noted that her qualifications and experience were not in question before the Tribunal and explained that the key issue before it was whether or not the related nomination application, being the application referred to in cl.187.233(1), had been approved.  The Tribunal explained that it was a question of fact as to whether the related nomination had been approved, that a new nomination won’t satisfy this requirement in relation to the review application before the Tribunal and that the Tribunal did not have discretion in relation to this particular requirement.
15.  	The Tribunal took evidence from the witnesses.  Mr Rokonjjamam stated that he is the current owner of the business and has known the applicant since July 2020 when he took over the business. He stated that the applicant is an asset to the business and had helped him a lot, noting that he had relied on her to support the business in the nominated position since buying the business.  He stated that he would ‘be in trouble’ if they lost her.  Ms Tamal stated that the nominee was a valuable asset for the company and was a wonderful employee.  She stated that she understood that it was not about the applicant’s skills and experience, it was about not meeting the criteria. She stated that she hoped they could find a way to support the applicant to stay.
16.  	The applicant’s representative made closing submissions stating that the applicant is a kind, loyal and professional person who has a great affection and passion for Australia.  He stated that the case is very unfortunate as the applicant has done nothing wrong and has continued to make a positive contribution to her employer and the Darwin community despite the issues she is facing. He submitted that in his humble opinion it was in the best interests of everyone: the employer, franchisor, community and Australia to keep good, kind, professional people like the applicant.
17.  	The Tribunal noted the applicant’s oral and written submissions but reiterated that, unfortunately, the issue before it was whether there was an approved nomination in respect of the nominated position and that this was not a requirement in respect of which the Tribunal had discretion.  The Tribunal invited the applicant to consider making submissions to the Tribunal regarding a possible referral of the matter to the Minister for consideration of the exercise of his powers of Ministerial Intervention under s.351 of the Act.
Nomination of a position
18.  	Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires 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.
19.  	In addition, this criterion also requires that:
•	the person who will employ the applicant is the person who made the 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 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.
20.  	In this case the nomination lodged by the nominator in respect of the applicant, being the nomination referred to in cl.187.233(1) and in respect of which the applicant made her visa declaration, was refused by the delegate on 17 July 2019 and the nominator did not appeal that decision to this Tribunal.  This means that the delegate’s decision is final.
21.  	As such, it follows that there is no approved nomination as required by cl.187.233(3).  Accordingly, following careful consideration, the Tribunal finds that the applicant does not meet the requirements of cl.187.233(3).
22.  	Therefore, cl.187.233 is not met.
23.  	The applicant has 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.
Ministerial Intervention
24.  	The Tribunal has considered whether the circumstances of this case warrant referral to the Minister 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 consistent with s.351 of the Act.
25.  	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.
26.  	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. The circumstances which may be unique or exceptional in this case 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;
•	circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case (emphasis added).
27.  	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.
28.  	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.
29.  	Following the hearing, the applicant has provided an extensive submission and accompanying documentation to support a request for Ministerial Intervention, which the Tribunal has considered. 
30.  	The applicant does not have any dependents associated with her visa and is not making submissions that she supports an Australian citizen or permanent resident such that there are 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.  The Tribunal notes that while the applicant has provided letters of support from her current and former employers, who are Australian citizens and permanent residents, highlighting her character, involvement and contribution to the business, the local community, and Australia generally, it does not appear that these relationships are of the nature that would warrant intervention on the basis that there are strong compassionate circumstances that if not recognised would result in an ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit. Having considered the information before it, the Tribunal does not consider these circumstances to be so unique or exceptional to warrant a referral to the Minister on this ground.
31.  	The Tribunal has also considered whether the application of the legislation would lead to unfair or unreasonable results in this particular case, having regard to the circumstances surrounding the refusal of the nomination application and the information before it regarding the applicant’s period of employment with the nominating business and the ongoing nature of that employment. The applicant came to Australia in 2013, initially on a student visa, and remains in full-time employment with the nominating business where she has worked since September 2014, despite a number of changes of ownership. The applicant’s current employers, who appeared as witnesses before the Tribunal, have provided supporting statements describing the applicant as a valued, respected and important member of the team and confirming that the nominated position is still available to the applicant and that they are very hopeful of retaining her services. In these statements the applicant’s current employers note that while it may not be impossible to replace the nominee, it would be extremely difficult and would require training of at least a year to get a new employee up to speed. They note that they have recently purchased the business and do not have the skills to undertake any such training. 
32.  	The applicant has also provided letters of support dated 12 October 2020 and 10 November 2020 from two senior staff members of the business franchisor and her former employer ‘Foodco’, which took over the business when the then business owner ‘disappeared’.  In these letters, these senior personnel provide detailed evidence regarding the nominee’s qualities and attributes, noting in particular:
a.	The nominee was extremely reliable and demonstrated excellence in baking, food preparation and customer service with her performance being of a consistently high standard;
b.	The employer was managing the store remotely and relied heavily on the nominee, trusting her to ensure the store was operational and noting that she took her role very seriously;
c.	The nominee was a skilled baker and supervisor, who had responsibility for training other members of the team;
d.	The nominee consistently demonstrated passion and commitment for her role, was extremely reliable and enthusiastic and regularly received positive feedback from customers;
e.	The nominee was an excellent and highly valued asset for the team;
f.	The nominee subscribed to and demonstrated the brand values of ‘good ingredients, good products and good people’;
g.	The nominee has the qualities and attributes to be successful in her own franchised business and the franchisor/employer is supportive of her desires to own her own Muffin Break store in Katherine in the future.
33.  	The applicant has noted her love for and commitment to Darwin and her enduring desire to obtain permanent residency to facilitate her ongoing contribution to Australian society.  The applicant has noted the hardship experienced by her as a consequence of the visa process, but has emphasised she remains positive, committed and hopeful and focused on the health and wellbeing of others over herself. The applicant has submitted that granting her a Subclass 187 visa would serve the purpose of the Regional Sponsored Migration Scheme, by allowing her to continue to support a business operating in a remote area of Australia, noting that the nominated occupation of Baker is on the Northern Territory Migration Occupation list, indicating demand.  Additionally, the applicant has provided a number of photographs of customers and friends to demonstrate her contribution and commitment to the Darwin community and their support of her.  She has also provided details of charitable activities in service of the Australian community generally. Finally, the applicant has provided details about her desire to set up her own Muffin Break franchise in Katherine in the Northern Territory to provide employment and education opportunities for Indigenous Australians and to support other charitable initiatives.  
34.  	The Tribunal recognises the applicant’s individual circumstances are difficult and beyond the control of the applicant and acknowledges and notes the contribution the applicant has made to the business and the local community over many years. The Tribunal also acknowledges that there will be some impact on the applicant’s current employer should the applicant return to her country of birth. Notwithstanding this, and despite having sympathy for the applicant, having considered the information, the Tribunal does not consider the applicant’s circumstances are so unique or exceptional to warrant a referral to the Minister.
35.  	The Tribunal notes that the applicant can still make a request directly to the Minister.
decision
36.  	The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Phoebe Dunn
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
(aa)	in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); 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.