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Administrative Appeals Tribunal of Australia |
1676 
(1 June 2022)
Last Updated: 15 June 2022
Saeed (Migration) [2022] AATA 1676 (1 June 2022)
DECISION RECORD
DIVISION: Migration & Refugee Division
APPLICANT: Mr Muhammad Usama Saeed
HOME AFFAIRS REFERENCE(S): BCC2017/3872605
MEMBER: Katie Malyon
DATE: 1 June 2022
DECISION: The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.
Statement made on 01 June 2022 at 12:58 pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa
– Subclass 186 (Employer Nomination Scheme) – Temporary
Residence
Transition stream – Cook – subject of an approved nomination
– unique or exceptional circumstances – Minister’s Guidelines
–
exceptional economic benefit – unfair or unreasonable results
– lodgement of nomination by new employer – adverse
impact on the
business – impact of the s 48 bar – unanticipated impact of COVID-19
on ability to travel offshore –
Ministerial Intervention requested –
decision under review
affirmed
LEGISLATION
Migration
Act 1958 (Cth), ss 65,
351
Migration
Regulations 1994 (Cth), Schedule 2, cl
186.223
CASES
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 1 August 2018 to refuse to grant the applicant, Pakistani national Mr Muhammad Usama Saeed, an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (the Act).
2. Mr Saeed applied for the visa on 20 October 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
3. 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). Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’ as well as the criteria of one of 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.
Background
4. In the present case, Mr Saeed is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Cook ANZSCO 351411.
5. The delegate refused to grant the visas on the basis that Mr Saeed did not meet cl 186.223(2) of Schedule 2 to the Regulations because the nomination application made by his employer, Crinitis Manly Trading Pty Ltd (the Company), was refused. Both the Company and Mr Saeed sought review of the delegate’s decision to refuse their respective applications.
The Tribunal’s s 359A letter and response
6. On 2 March 2022, the Tribunal wrote to Mr Saeed pursuant to s 359A of the Act inviting him to comment on, or respond to, information which would, subject to his comments or response, be the reason or a part of the reason, for affirming the decision under review to refuse his Subclass 186 visa application. The Tribunal stated it was aware Mr Saeed’s visa application had been refused because the Company’s nomination was refused and, although the Company sought review of the delegate’s refusal of its nomination, subsequently it requested that its review application be withdrawn and the Tribunal finalised the case as withdrawn on 13 August 2021. Accordingly, there is no approved nomination by the Company in relation to Mr Saeed. As a result, the position to which Mr Saeed‘s Subclass 186 visa application relates cannot meet the criteria in cl 186.223 of Schedule 2 to the Regulations and, following the decision of the Full Federal Court in Singh v MIBP [2017] FCAFC 105 (Singh’s case), this is a ‘once off’ process.
7. In its s 359A letter, the Tribunal requested Mr Saeed provide any
comments or response to the information in the Tribunal’s
letter on or
before 17 March 2022. On 3 March 2022, Mr Saeed’s immigration lawyer
assisting with his review application emailed
the Tribunal to advise that he was
no longer acting for Mr Saeed. The Tribunal sent a courtesy copy of its
s
359A letter to Mr Saeed on the same day.
8. On 17 March 2022, Mr Saeed responded to the Tribunal’s s 359A letter. He noted that he began working with the Company in 2015 and that the Company told him it believed that it had solid grounds for the nomination to be approved. However, Mr Saeed states that the Company went into liquidation in October 2019 and, with the impact of the COVID-19 pandemic, it was difficult to find another position. He added that, fortunately, in December 2020 he found a job as Chef with Emilio’s Restaurant Pty Ltd T/A Emilio’s Ristorante (Emilio’s) and, subsequently, Emilio’s had lodged an employer nomination in the Direct Entry stream for the position of Head Chef in respect of him. Mr Saeed requested additional time to allow the Department time to consider Emilio’s nomination application. He observed that he has done everything right during his stay in Australia, demonstrating his skills and his value to his employers. Mr Saeed requested the Tribunal be compassionate and consider his request for additional time.
9. Mr Saeed provided a number of documents to the Tribunal in support of his request that the Tribunal delay consideration of the delegate’s refusal of his visa application pending the Department’s consideration of the nomination made by Emilio’s including:
1) Mr Saeed’s favourable Skills Assessment Result for the occupation of Chef ANZSCO 351311 issued by Trades Recognition Australia dated 24 January 2020;
2) Mr Saeed’s signed letter of engagement with Emilio’s dated 3 December 2021 for the position of Head Chef at a salary of $105,00 per annum plus superannuation;
3) evidence of the Department’s notification dated 21 February 2022 to Emilio’s confirming its lodgement of an Employer Nomination Scheme (Subclass 186) nomination in respect of Mr Saeed;
4) payslips issued to Mr Saeed by Emilio’s for the period 21 February 2022 – 20 March 2022 which confirm his salary at $104,000 per annum; and,
5) Mr Saeed’s Income Statement issued by the Australian Taxation Office (ATO) confirming his income from Emilio’s for the year ended 30 June 2021.
Hearing
10. Mr Saeed appeared before the Tribunal on 4 May 2022 to give evidence and present arguments at a MS Teams videoconference hearing.
11. The Tribunal summarised the content of its s 359A letter and the fact that, for the purposes of lodging a valid Subclass 186 visa application, he was required to make a Declaration not only that his visa application relates to a position nominated under r 5.19 of the Regulations but that he also had provided the Transaction Reference Number for the Company’s related nomination, in this case, TRN EGOFTT8K7E. Mr Saeed acknowledged the Tribunal’s comments in this regard. He added that he accepts the Tribunal has no discretion and must affirm the delegate’s decision to refuse his Subclass 186 visa because the Company’s nomination was not approved and, consistent with the decision in Singh’s case referred to in the Tribunal’s s 359A letter, it is a ‘once off’ process.
12. The Tribunal then discussed with Mr Saeed the possibility of it referring his matter to the Minister pursuant to s 351 of the Act or, in the alternative, applying for a Bridging B visa to leave Australia and then apply off-shore for a Subclass 186 visa nominated by Emilio’s. Mr Saeed told the Tribunal he was aware of the latter option but that this would have a really adverse impact on Emilio’s business, particularly in circumstances where the other 22 staff of the business are now increasingly busy notwithstanding the fact that the restaurant has only recently been established. He added that there is very little competition in the Lake Macquarie district where Emilio’s restaurant is located and the public demand for the restaurant’s services has increased following the easing of COVID-19 restrictions. The Tribunal also briefly discussed documentation that Mr Saeed and Emilio’s may wish to lodge with the Department pending its consideration of the Tribunal’s referral of the matter to the Minister and thereby enable the Department to proactively engage with, and consider, Emilio’s fully-documented decision-ready nomination application lodged on 21 February 2022.
13. Mr Saeed requested another day in which to lodge further documentation with the Tribunal in support of its possible referral to the Minister. The Tribunal agreed to Mr Saeed’s request.
14. Following the hearing, the representative provided a letter from the Director of Emilio’s dated 5 May 2022, Ms Angelina Pavan. Ms Pavan states that Mr Saeed has become an integral part of all the daily operations, future planning, business development and overall financial management of Emilio’s Italian restaurant at Warners Bay. She adds that Mr Saeed’s oversight and guidance are key factors underpinning daily operations and growth of the business. Ms Pavan also notes that the growing popularity of the business has been strongly influenced by Mr Saeed’s customer service focus and his incredible work ethic. By way of concluding comment, Ms Parvan opines that, in the event that Mr Saeed is unable to continue working with the business, the restaurant would be at significant risk thereby placing undue strain on her, remaining staff and the business in general.
15. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. For reasons outlined below, the Tribunal has decided to refer this matter to the Minister pursuant to s 351 of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
16. The issue in the present case is whether the Company’s nomination of the position of Cook ANZSCO 351411 in respect of Mr Saeed has been approved.
Nomination of a position
17. 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 applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the applicant’s visa application.
18. In addition, this criterion also requires that:
19. The Company's nomination application was refused by the Department on 21 June 2018 and it applied to the Tribunal for review of that decision. However, subsequently the Company advised the Tribunal that it wished to withdraw its review application (publicly available ASIC records confirm it had gone into liquidation) and, on 30 August 2021, the Tribunal finalised the Company’s review application.
20. In these circumstances, as the nomination application made by the Company for the position of Cook ANZSCO 351411 to which Mr Saeed’s Subclass 186 visa application relates has not been approved, it follows that he does not and cannot meet the criteria in cl 186.223(2) of Schedule 2 to the Regulations. Following the decision of the Full Federal Court in Singh’s case, this is a 'once off' process: Mortimer J at [90]. Therefore, the Temporary Residence Transition stream requirements in cl 186.223 of Schedule 2 to the Regulations are not met.
21. Mr Saeed 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: the Direct Entry stream or the Labour Agreement stream. 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 to refuse Mr Saeed’s application for a Subclass 186 visa must also be affirmed.
Is this an appropriate matter to refer to the Minister?
22. 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 (emphasis added).
23. The Tribunal has no statutory obligation to consider whether a matter should be referred to the Minister for consideration of use of the 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. Further, the power is non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether being requested to do so by the applicant, or any other person, or in any other circumstances.
24. The Minister has issued guidelines explaining the circumstances for consideration of exercising the public interest powers under s 351 of the Act.[1] Also indicated are cases where it would be inappropriate to bring a matter to the Minister’s attention. The guidelines indicate that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances. The Guidelines also indicate that in cases referred by the Tribunal under s 351 of the Act, the Department will provide the Minister with any other relevant information.
25. The circumstances which may be unique or exceptional in this case include:
26. The other relevant information for consideration by the Department in relation to potential referral to the Minister include:
27. The Tribunal has considered not only the Minister’s Guidelines
referred to above but also
cl 16.1 – cl 16.5 of the Tribunal’s
President’s Direction Conducting Migration and Refugee Reviews as
to whether this is an appropriate case to refer to the
Minister.[2] 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.
28. During the hearing, the Tribunal explained that it had no discretion and must affirm the delegate’s decision to refuse Mr Saeed’s Subclass 186 visa for the reasons outlined above. It noted, however, its potential to refer the matter to the Minister. In support of possible referral of the matter to the Minister, Mr Saeed told the Tribunal that, although he started working with the Company, the business closed and so he started working with Emilio’s as a Chef in December 2021. He confirmed that Emilio’s has lodged a nomination application in respect of him as the holder of a Subclass 186 visa in the position of Chef and that nomination is still being considered by the Department. Evidence of Emilio’s lodgement of its nomination on 21 February 2022 was provided to the Tribunal.
29. Mr Saeed said he is aware that he is barred by s.48 of the Act from lodging another visa application whilst remaining onshore in Australia. He observed that, but for the impact of the COVID-19 pandemic restricting his ability to leave Australia, he could have left earlier, especially if there was some certainty about his ability to promptly return to Australia to continue working with Emilio’s and thereby minimise any adverse impact on the business.
30. In response to the Tribunal’s invitation to address the Minister’s Guidelines, Mr Saeed also said that he has developed strong connections with Australia and, as a Pakistani who grew up playing cricket, he has really enjoyed playing First Grade Cricket with his mates at Cameron Park in Sydney. Further, he noted that he fully complied with Australian laws including consistently paying tax and lodging tax returns. Mr Saeed noted he had added he could provide the Tribunal with evidence of his Notices of Assessment issued by the ATO.
31. As noted above, after the hearing the representative provided a letter from the Director of Emilio’s confirming her pleasure to be able to provide a letter in support of the Tribunal’s referral of Mr Saeed’s case to the Minister. Ms Pavan’s comments are summarised above at para [14].
32. The circumstances and considerations extracted above at para [25] which cumulatively engage whether the Tribunal should refer this matter to the Minister are set out below:
1) Exceptional economic benefit would result from the review applicant being permitted to remain in Australia.
The Tribunal accepts that on 21 February 2022 the Department acknowledged receipt of the nomination made by Emilio’s for the position of Chef ANZSCO 351311 in respect of Mr Saeed. A copy of the Department’s acknowledgement was provided to the Tribunal.
Further, the Tribunal accepts that the occupation of Chef ANZSCO 351311 is included in the New South Wales Government’s Skilled Occupation List.[3]
The Tribunal also accepts that the hospitality industry has been particularly adversely impacted by the COVID-19 pandemic with a 35% drop in payroll jobs.[4] It also accepts that a strong hospitality industry will contribute to revival of the Australian economy post COVID-19.[5] In New South Wales, the State Government’s response has, inter alia, been to encourage New South Wales residents to visit restaurants such as Emilio’s by issuing vouchers to a value of $25 per visit.[6]
In a signed letter dated 5 May 2022, Emilio’s General Manager Ms Pavan, warmly writes in her letter of recommendation noting that Mr Saeed has become an integral part of the daily operations of Emilio’s as well as its future planning, business development and overall management. Ms Pavan’s further comments are outlined above at para [14].
The Tribunal notes that the hospitality industry is experiencing an incredible shortage of skilled workers, particularly qualified Chefs and this is recognised by the Department listing it as a critical sector. Further, the Department has just recently released a Labour Agreement which will include occupations including Chef.[7]
2) Circumstances not anticipated by the relevant legislation or the application of relevant legislation leads to unfair results.
The Tribunal notes that the impact of the COVID-19 pandemic has meant that, until very recently, Mr Saeed has been unable to travel offshore to lodge a Subclass 186 visa to allow him to continue his employment with Emilio’s due to his being barred by s.48 of the Act from lodging such an application onshore. Although this option may now be possible, the Tribunal accepts Emilio’s operations may be adversely impacted if its Head Chef Mr Saeed is not able to promptly return to Australia to resume employment pending approval of his Subclass 186 visa lodged offshore. Information on the Australian Government’s website indicates that Pakistan is still experiencing widespread transmission of COVID-19 with only 54% of its population fully vaccinated: this compares with 83% in Australia.[8]
The Tribunal notes the Commonwealth Government has recognised the inflexibility of the Regulations regarding the Schedule 2 criteria for a range of visas arising from the impact of travel restrictions in response to COVID-19. By way of example, the Government introduced the Migration Amendment (2021 Measures No. 1) Regulations 2021 (the 2021 Amending Measures Regulations) which amend the Regulations effective 27 February 2021. The 2021 Amending Measures Regulations facilitate, inter alia, onshore grants of Subclass 101 (Child), 102 (Adoption), 124 (Distinguished Talent), 300 (Prospective Marriage), 309 (Partner (Provisional)) and 444 (Dependent Child) visas. Prior to the introduction of these amendments, it was necessary for the grant of these visas that the applicant be offshore. The Explanatory Statement accompanying the 2021 Amending Measures Regulations confirms the instrument makes amendments, inter alia, to assist certain visa applicants and holders ‘adversely impacted by COVID-19’. This recognises that COVID-19 travel restrictions were not only circumstances which are not anticipated by the relevant legislation but also that application of the Regulations lead to unfair results in some cases.
The Tribunal acknowledges that the 2021 Amending Measures Regulations are merely one of a suite of the Commonwealth Government’s regulatory changes which recognises the adverse impact on some visa applicants of otherwise inflexible provisions in the Regulations in the context of the circumstances presented to applicants by the COVID-19 pandemic. Just recently, for example, the Government issued legislative instrument LIN 22/038 in response to the strong labour demand and declining number of temporary visa holders in 2021 due to the COVID-19 pandemic. The measures effective 1 July 2022 improve access to permanent residence for certain holders of Subclass 482 and Subclass 457 visas as well as some Bridging A, Bridging B and Bridging C visa holders following recommendation by the Joint Standing Committee on Migration.
Another example is the Home Affairs Legislation Amendment (2021 Measures No. 2) Regulations 2021 which amended r 2.12 of the Regulations to prescribe Subclass 190 (Skilled-Nominated), Subclass 491 (Skilled Work Regional (Provisional)) and Subclass 494 (Skilled Employer Sponsored Regional (Provisional) visas as visas for which an application can be made in Australia by applicants who have been refused a visa or have had a visa cancelled whilst in Australia and, as a consequence, are prevented by s 48 of the Act from applying for another visa other than a prescribed visa whilst remaining in Australia.
In summary, as outlined above and due to the combined impact of the s 48 bar precluding Mr Saeed’s ability to apply onshore for a Subclass 186 visa and the unanticipated impact of COVID-19 on Mr Saeed’s ability to travel overseas to lodge such a visa application and then quickly return to Australia to resume his work at Emilio’s, it appears to the Tribunal that his circumstances have not been anticipated by the relevant legislation such that the application of relevant legislation leads to an unfair result.
33. Given the cost to Mr Saeed, and vicariously to the Australian community, by virtue of dealing with any further possible appeal from this decision, it may well be a reasonable consideration for the Minister to allow Mr Saeed to remain in Australia with full work rights pending the outcome of Emilio’s nomination application and then treat his Subclass 186 application under review as Mr Saeed’s related visa application. The Tribunal acknowledges that would, however, be a matter entirely for the Minister to determine.
34. The Tribunal notes that the considerations outlined in para [26] are purely a matter for the Department.
35. Having regard to the circumstances of this case, the Tribunal considers that Mr Saeed’s situation involves unique or exceptional circumstances as outlined above consistent with the Minister’s Guidelines. It will refer this matter to the Minister. The Tribunal will provide the Department with Ms Pavan’s letter submitted after the hearing. Mr Saeed and Emilio’s may wish to seek professional advice as to further documentation (sch as that discussed above at para [30]) which may be submitted to the Department to demonstrate his compliance with Australian laws as well as evidence of the level and nature of his integration into the Australian community since his arrival as the holder of a Student Subclass 572 visa, that is, more than a decade ago on 13 April 2011.
DECISION
36. The Tribunal affirms the decision not to grant
the applicant an Employer Nomination (Permanent) (Class EN)
visa.
Katie Malyon
Member
ATTACHMENT
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.
[1]
https://immi.homeaffairs.gov.au/what-we-do/status-resolution-service/ministerial-intervention#content-index-1
[2]
http://www.aat.gov.au/landing-pages/practice-directions-guides-and-guidelines/conducting-migration-and-refugee-reviews-president
[3]
https://www.nsw.gov.au/topics/visas-and-migration/skilled-visas/nsw-skilled-occupation-lists
[4]
https://www.abs.gov.au/statistics/economy/business-indicators/business-conditions-and-sentiments/latest-release;
https://www.abs.gov.au/articles/one-year-covid-19-aussie-jobs-business-and-economy
[5]
https://treasury.gov.au/speech/opening-statement-economics-legislation-committee;
https://7news.com.au/lifestyle/health-wellbeing/city-of-melbourne-offer-dining-vouchers-in-cbd-of-up-to-100-from-friday-as-lockdown-ends-c-3078205;
https://www.mckinsey.com/industries/public-and-social-sector/our-insights/the-next-normal-for-australian-industries-and-workforces#;
https://www2.deloitte.com/content/dam/Deloitte/ca/Documents/consumer-industrial-products/ca-future-of-hospitality-pov-aoda-en.pdf;
[6]
https://www.nsw.gov.au/covid-19/vouchers-and-support
[7]
https://www.hotelmanagement.com.au/2022/04/27/industry-specific-labour-agreement-to-give-australia-competitive-edge-taa-says/
[8]
BBC News “Covid map: Coronavirus cases, deaths, vaccinations by
country”, 26 April 2022 https://www.bbc.com/news/world-51235105
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