Nearly 10 years of a life in Australia are in the balance because of confusion by the applicant and his sponsor over deadlines in submitting his passport for review when he applied for a subcategory 457 visa.
A decision on whether metal fabricator Anastasios Papanikos, 61, can stay on in Australia, now rests with Alan Tudge MP, the Acting Minister of for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Joseph Italiano, the specialist immigration lawyer Mr Papanikos turned to after his applications failed at the beginning of the year said the outcome would have been different had his client first made his application with the help of a specialist in the field.
In a letter Mr Italiano addressed to the minister on 4 May, he wrote: “The business was unrepresented and the employer was assisting the visa applicant who was awaiting a new passport from the Greek Consul.
“As it was the Christmas season and the business was busy prior to Christmas closure, the applicant failed to respond to the request for further information and the visa was refused on 15 January 2020.
“The applicant was notified of his review rights. The employer acting on the applicant’s behalf as he has limited English believed the review deadline was 28 days instead of 21 days. As a consequence of his misunderstanding the review application was lodged on 7 February 2020 and not by 5 February 2020.”
Mr Papanikos, a Greek national, applied for the visa with the support of his sponsor/employer for whom he has worked since July 2010. His speciality is European-style windows and their assembly. Such is skill and experience in glazing and metal fabrication that others have benefitted from the training he has offered them.
When he first applied for the visa late last year, he was turned down. The case was brought for review before the Administrative Appeal Tribunal (AAT). The Tribunal approved his nomination on 10 December, last year, and it reissued the visa application to the Department of Home Affairs. The department advised Mr Papanikos to proceed again with the application process.
And this was where the mistakes crept in and a number of factors described in Mr Italiano’s letter contributed to the predicament Mr Papanikos now finds himself in.
His application was rejected on 15 January. While he had the right to review the decision, a misunderstanding about the deadline, he submitted the appeal on 7 February, two days after AAT’s deadline.
As a consequence of this, Mr Papanikos was given 35 days to leave the country. It was at this stage that he turned to immigration law specialist Joseph Italiano.
“I immediately submitted an application for the intervention of the Minister,” said Mr Italiano. He was however told that there was no possibility of referring the case to the minister because Mr Papanikos had missed the deadline to be heard by the AAT.
Mr Italiano response was to re-submit a request for the examination of his client’s case under Section 195A of the Migration Act of 1958 which gives the minister the discretion to “grant a detainee any visa (whether or not on application)”.
While Section 195A was rarely implemented, Mr Italiano said that he had successfully cited for previous clients on compassionate and humanitarian grounds and was applied for people held in a detention centre.
In his letter to the minister Mr Italiano wrote: “It is submitted that the circumstances faced by my client are exceptional, compelling and consistent with the public interest justifying your intervention to grant the applicant a subclass 457 visa or in the alternative permanent residence.”
Mr Italiano went on to say: “… and the request is not in respect of a visa application, a refusal to refer the request to the Minister through a misunderstanding or misapplication of the Guidelines is judicially reviewable though not only limited to unreasonableness grounds.”
The lawyer said Mr Papanikos was an expert in European style windows and assemblage. “This style is used by upmarket housing and requires expertise which is in short supply Australia. He uses his extensive skills to train locals in this style of building frames and windows.”
Despite the skills that Mr Papanikos possesses, his lack of English will hamper his chances of applying for a visa from Greece.
“Even if he returns to Greece and lodges a subclass 482 visa the current law requires vocational English which was not a requirement on the visa refused.
“Consequently, as a result of his misunderstanding of the review period the employer has lost the services of his most experienced employee who cannot return on this visa as the current law mandates vocational English”, said Mr Italiano.