1308777 (Migration)

[2015] AATA 3110

1308777 (Migration) [2015] AATA 3110 (10 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Acar Company Pty Ltd

VISA APPLICANTS:  Mr Zeki Akkaya
Mrs Emine Akkaya
Ms Kubra Akkaya
Mr Mehmet Said Akkaya

CASE NUMBER:  1308777

DIBP REFERENCE(S):  CLF2012/205935

MEMBER:Denise Connolly

DATE:10 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Migrant) (Class AN) visas.  

Statement made on 10 July 2015 at 10:09am

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 on 16 April 2013 to refuse to grant Employer Nomination (Migrant) (Class AN) Subclass 119 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 June 2012. The Class AN visa contains two subclasses: 119 (Regional Sponsored Migration Scheme) (Employer Nomination Scheme) and 121 (Employer Nomination Scheme). As the nominated position for which the visa is sought is the subject of an employer nomination made on the basis of meeting the requirements of r.5.19(4) of the Migration Regulations 1994 (the Regulations), the relevant visa subclass is Subclass 119.

3. The criteria for this visa subclass are set out in Part 119 of Schedule 2 to the Regulations. They include cl.119.211(3)(b) which relevantly requires that the first named visa applicant (the visa applicant) must meet certain age, qualification and English language proficiency requirements, unless exceptional circumstances apply.

4. In the present case, the delegate refused to grant the visas on the basis that the visa applicant did not satisfy cl.119.211(3)(b)(ii) because he did not have Functional English and exceptional circumstances did not apply.

5. On 18 March 2015 the Tribunal invited the review applicant to appear before the Tribunal, by video conference, at a hearing scheduled for 10am, 13 May 2015. He was asked to notify the Tribunal as soon as possible if he was unable to attend the hearing. He was advised that the Tribunal may wish to speak with the visa applicant. 

6. On 5 May 2015 the representative requested that the Tribunal reschedule the hearing later in the day, at 3pm, as the hearing was scheduled at 3am – Turkey time. The Tribunal considered this request however, as the representative confirmed the review applicant was in Australia and would be able to attend the hearing, and given it was not possible to reschedule the video conference hearing at such short notice, and that the only option would have been to postpone the hearing for several weeks, the Tribunal decided not to postpone the hearing. The representative wrote to the Tribunal and expressed his disappointment at this decision.

7. Mr Max Acarr appeared before the Tribunal, on behalf of the review applicant, by video conference on 13 May 2015 to give evidence and present arguments.

8. The review applicant was represented in relation to the review by its registered migration agent who attended the hearing by conference telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The visa applicant had not, at the time of application, made a valid application for the visas mentioned in cl.119.211(2)(a), (b), (c), or (d) and so cl.119.211(2) is not applicable in this case. The visa applicant had not, at time of application, made a valid application for a visa within subparagraph 1114A(2)(a)(ii) of Schedule 1. Consequently, cl.119.211(3)(a) is also not applicable in this case. The Tribunal will now consider whether the applicant meets cl.119.211(3)(b).

    Clause 119.211(3) – exceptional circumstances

11. Clause 119.211(3)(b) requires that,  unless exceptional circumstances apply, the visa applicant must have not turned 45, must have functional English and must hold a diploma or a higher qualification at the time of application. 

12. At the time of application, the evidence required to demonstrate that a person had functional English pursuant to s.5.17 of the Regulations included evidence that the person could attain 10 points under Part 3 of Schedule 6. Part 3 of Schedule 6 provides for 10 points to be awarded when a person has achieved an IELTS average band score of at least 4.5 based on the 4 test components of speaking, reading, writing and listening in a test conducted not more than 12 months before lodging the relevant application to migrate.

13. The review applicant provided to the Tribunal a copy of the delegate’s decision record. The delegate refused to grant the visas on the basis that the visa applicant did not satisfy cl.119.211(3)(b) because exceptional circumstances did not apply and the visa applicant did not have evidence of functional English. In written submissions to the Tribunal dated 7 May 2015, and at the hearing, the review applicant has confirmed that the visa applicant does not have functional English and does not have a diploma or higher qualification.

    The applicants’ evidence

14. In this case the nominated position is Primary Products Inspector nec (ANZSCO 311399).

15. At the time of application the review applicant and the representative made written submissions as to why they believe there are exceptional circumstances in this case.

16. The review applicant has submitted that while the visa applicant is Turkish speaking, the review applicant has a number of Turkish speaking employees who will be able to work with the visa applicant and interpret for him. 

17. The review applicant also submitted that the nominee does not need to have diploma qualifications because he has extensive relevant practical work experience and has been working as a Primary Products Inspector for many years. The review applicant finds candidates with hands on experience have unique skills that cannot be taught in the classroom. He asserts that while the visa applicant is not formally qualified he has background experience of agriculture, disease and treatment. He requests that the Department approve an ‘exceptional appointment’.

18. The review applicant provided a letter from his accountant asserting that while the business has grown and developed, its growth is impeded by a lack of suitably skilled employees.

19. The review applicant provided a written description for the position which includes tasks:

    a.inspects plants and agricultural produce to identify product quality issues, and providing advice to producers

    b.tests samples of produce for quality, size and purity

    c.ensures that required standards of hygiene are observed at storage, processing and packing facilities and in transport vehicles

    d.advises primary producers on economic aspects of disease eradication and informing producers of diseases and impurities

20. These are essentially four of the tasks taken from the ANZSCO description for the occupation Primary Products Inspector which states in part as follows:

    UNIT GROUP 3113 PRIMARY PRODUCTS INSPECTORS

    
    PRIMARY PRODUCTS INSPECTORS inspect animals, plants and agricultural produce and facilities to ensure compliance with government and industry standards with respect to quality, health and licensing.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    Tasks Include:

    oinspecting animals, plants and agricultural produce to identify product quality issues, and providing advice to producers

    oauditing and monitoring quality procedures at farms and food handling and processing facilities to ensure compliance with required standards

    otesting samples of produce for quality, size and purity

    oensuring that required standards of hygiene are observed at storage, processing and packing facilities and in transport vehicles

    oadvising primary producers on economic aspects of disease eradication and informing producers and the general public of the health implications of diseases and impurities

    oadvising on the identification of pests and diseases and on regulations pertaining to grading, packing and loading of products

    oexamining imported plants and animals, and products, such as timber, seeds and dried fruits, and making quarantine arrangements

    opatrolling and investigating waterways for unlawful fishing activities and the removal of protected marine life

    oeducating, advising and providing information on a wide range of topics relating to fish and their protection

    omay initiate or assist in legal action to enforce regulations

21. The review applicant provided a statement asserting that the visa applicant has undergone training with an agronomist in Turkey from 2002 to 2006, and a reference from a previous employer stating the visa applicant worked in his fruit and vegetable store from August 2006 to February 2010. His duties are described in similar terms to the ANZSCO description. The review applicant submitted that many of his employees are from Turkey and some will be able to interpret for the visa applicant. He asserted that without employing a Turkish speaker his business will not grow as it will be difficult to communicate with the labourers.

22. The representative made written submissions on 29 June 2012 referring to an ‘exceptional appointment’ with regard to the nomination application and the visa application, essentially stating the following. The business supplies a range of services to clients with agricultural and farming needs. It has been forced to rely on unskilled workers such as backpackers. It is not possible to train short-term workers to undertake more technical duties such as primary produce inspection. The representative lists the review applicant’s clients and the services provided. He asserts the business needs a number of Primary Produce Inspectors to meet its contractual requirements. He asserts the employment of the nominees will benefit the Riverina region. The review applicant has been marketing online to source local candidates but has been unsuccessful. The representative sought to have the nomination approved as an ‘exceptional appointment’, even though the position of Primary Products Inspector (PPI) requires the appointment of a person who has a diploma (within the meaning of r. 2.26A(6)) or a higher qualification (see the ANZSCO definition above). The representative refers to the reasons why the nomination  should be an exceptional appointment as follows: the technical requirements and scarcity of such skills in Australia; the position is critical to the operations of the business and requires specialised knowledge, skills and experience; a candidate with many years’ experience is preferable to a younger qualified person; the nominee (visa applicant) has many years of relevant, practical work experience; the review applicant is satisfied the visa applicant is perfectly qualified for the role; the review applicant employs people from Turkey, India, China,  Korea and Nepal and he has found that a high level of English is not essential to effectively carrying out the duties and responsibilities of the position; the review applicant will suffer prejudice if the visa is not granted.

23. The review applicant provided the visa applicant’s curriculum vitae indicating he was a self-employed farmer until April 2012 and a PPI from May 2012.

    Evidence to the Tribunal

24. The review applicant provided to the Tribunal the delegate’s decision record in relation to the approval of the nominated position as an approved appointment. That notice indicates that the ‘exceptional circumstances’ in relation to the visa applicant’s lack of English and a diploma will be taken into consideration when processing the visa application. It does not appear to have been an exceptional appointment. The Tribunal notes an exceptional appointment relates to the position and, for r.5.19(4)(c), if the work to be performed does require a person who has a diploma or higher qualification, as in this case, then the issue of whether the appointment is exceptional does not arise.

25. In relation to the visa application the delegate formed the view that the visa applicant’s lack of English may be problematic with respect to providing advice to producers and labourers. He formed the view that at least a functional level of English is required to perform the routine tasks of the nominated position. He did not accept the visa applicant would be able to perform the requirements of the position without functional English. With respect the review applicant’s claims that the visa applicant would undertake occupational health and satisfied training in English/Turkish the delegate was not satisfied that this was sufficient evidence to determine the visa applicant’s ability to act in an emergency situation.

26. The review applicant was invited by the Tribunal to provide further information in relation to the visa applicant’s English language proficiency, his qualifications and information demonstrating that exceptional circumstances apply.

27. The review applicant provided a written submission in May 2014 acknowledging the visa applicant does not have functional English or a diploma qualification. He submitted the following: the business needs PPIs to stay competitive and meet current obligations; the position is crucial to the business; the business cannot keep suitably qualified personnel; a diploma is not as valuable as practical experience; the services are provided over a distance of 150 km between farms and also in the NT; and the field managers are undertaking an unsustainable workload. The review applicant set out information regarding the business’ major clients and the services provided. He described the various attempts at filling the positions. He set out information about the business’ other PPIs, three of which were SC 457 visa holders who returned to Turkey, and one who was a SC 457 visa holder who went on to be granted a SC 857 visa.

28. The representative provided to the Tribunal copies of MRT decisions where the Tribunal found there were exceptional circumstances.

    Previous visa application by the visa applicant

29. In October 2010 the visa applicant in this case applied for a SC 457 visa, also sponsored by the review applicant, to perform the occupation of PPI. That application was refused by the Department. The review applicant applied to the MRT for review of that decision and on 11 February 2014 the Tribunal (differently constituted) affirmed the delegate’s decision.

    Submissions prior to the hearing

30. On 7 May 2015 the review applicant made written submissions in which he asserts the main role of the PPI will be to inspect and identify quality products and report back to managers who speak Turkish. The review applicant has observed the visa applicant and he is confident he has the skills. In his view a diploma is not required given the visa applicant’s experience. The review applicant cannot keep qualified PPIs from the local market. Many of the review applicant’s subcontractors and workers do not have functional English and are able to successfully perform their duties, and they comply with OH&S laws. The review applicant will support the visa applicant learning English in Australia. The business wants to have one PPI per major client.

31. Prior to the hearing the representative provided the following written material:

    ·A written submission asserting the visa applicant is highly qualified and has specialist skills and that while he does not have functional English or a diploma qualification there are exceptional circumstances as follows:

    ·The visa applicant will be able to perform his role without functional English. There are other employees who meet the job requirements without functional English.

    ·The role requires him to report to managers who speak Turkish.

    ·Many workplaces in Australia employ non-English speaking employees and maintain safe work environments.

    ·The MRT (differently constituted) in case no. 1306391 remitted a similar matter having found there were exceptional circumstances. In that case the visa applicant was actually working in the role of PPI as the holder of a SC 457 visa.

    ·The nominated position is vital to the strategic and financial directions of the business.

    ·The nominated position is necessary to engage new or existing clients in niche or unconventional markets. The role is essential to engage new clients and meet expectations of existing clients as they assess quality of produce, identify disease and advise producers.

    ·The duties require specialised or unusual skills. It is asserted this is why a diploma is not as valuable as many years’ experience.

    ·Having worked as a farmer, and receiving formal training in 2002 – 2006, the visa applicant’s skills are particularly suited to the position.

    ·The review applicant has not been able to fill the positions locally and there are labour market shortages.

    ·The climate and work conditions are harsh and the hours are onerous.

    ·While the visa applicant does not have functional English he has been attending English classes since February 2015.

    ·Evidence that the visa applicant has been attending English classes.

    ·The notice approving the nominated position as an approved appointment under RSMS.

    ·Articles regarding non-English speaking workers in the Australian workforce and communicating health and safety across languages.

    ·Job Outlook information regarding the importance of skills required for PPIs, and ranking active listening (importance 72%), reading comprehension and speaking (both ranked importance 70%), and writing (importance 60%).

    Hearing on 13 May 2015

32. At the hearing the Tribunal discussed with the review applicant cl.119.211(3)(b) and explained that, in this case, it requires that the visa applicant must have not turned 45, and must have functional English and hold a diploma or a higher qualification at time of application, unless exceptional circumstances apply. The Tribunal discussed with the review applicant the nature and growth of the business since the visa application was made, its current workforce, the ANZSCO description for the occupation PPI, the review applicant’s submissions asserting there are exceptional circumstances in this case, the MRT’s previous decision and findings in relation to the visa applicant’s SC 457 visa application,  and various other issues relevant to the Tribunal’s consideration of whether there are exceptional circumstances in this case. The review applicant’s oral evidence is discussed in detail in the Tribunal’s assessment of the evidence.

33. Mr Acarr is fluent in English and did not require the assistance of an interpreter at the hearing. An interpreter however was present during the hearing in case the Tribunal decided it needed to take evidence from the visa applicant. During the hearing Mr Acarr informed the Tribunal that he had some concerns in relation to the interpreter. He told the Tribunal that at the visa applicant’s hearing in relation to the SC 457 visa refusal there had been a problem with the interpretation and the member had adjourned the matter and arranged for another interpreter to assist in the conduct of the hearing. He indicated he recognised the interpreter at the hearing in this matter, as he had had previous contact with him in a sports setting, many years ago.  He could not remember if the interpreter present on 13 May 2015 was the interpreter whose interpretation was problematic. The Tribunal has considered the MRT decision in relation to the visa applicant’s SC 457 visa refusal and it does in fact record that there were difficulties with the interpreting at the first hearing on 12 December 2013 so the Tribunal member in that case adjourned and reconvened on 17 December 2013, using a different interpreter.

1. The Tribunal discussed with the review applicant whether it was in fact necessary to speak with the visa applicant, given the review applicant was able to answer all of its questions in relation to the issues under consideration, and in particular whether there are exceptional circumstances. Ultimately the Tribunal decided it was not necessary to take evidence from the visa applicant so the assistance of the interpreter was not required during the hearing.

   Assessment of the evidence

2. In this case, the nominated position is for a Primary Products Inspector nec (ANZSCO 311399) with Acar Company Pty Ltd, the review applicant. The visa applicant has not submitted any evidence of having undertaken an IELTS test, with the visa application or subsequently. The review applicant has confirmed the visa applicant does not have evidence of functional English.  There is also no evidence that the visa applicant holds a diploma or higher qualification.

3. According to the Macquarie Dictionary, ‘exceptional’ is defined to mean ‘forming an exception or unusual instance; unusual; extraordinary’. The concept of ‘exceptional’ has been the subject of some judicial consideration by the Courts, with it being understood as meaning ‘unusual’ or ‘atypical’ or ‘out of the ordinary’. In Hatcher v Cohn [2004] FCA1548, Keifel J (referred to with approval in Wang v Minister Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918), stated that the term is one which may have a wide operation. Such circumstances do not need to be unique, unprecedented or rare. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. Consideration is not limited to the particular applicant's circumstances but may include, for example, any impact on the nominating business. In Jia v MIAC & Anor [2011] FMCA 422, Burchardt FM held that the Tribunal had not had regard to a submission about the effects on the employer's business if the applicant ceased working for it. Departmental policy contained within its Procedures Advice Manual provides guidance on the interpretation of ‘exceptional circumstances’, although the Tribunal is not bound by these guidelines.

4. The review applicant has made various written and oral submissions as to the reasons why exceptional circumstances apply in this case. These are summarised as follows:

   ·The visa applicant has extensive relevant experience and unique skills. He has many years of relevant experience which is more valuable than a diploma.

   ·Functional English is not required because there are Turkish speaking workers in the business who will be able to interpret for him. Also the review applicant finds that English is not essential for this position.

   ·The visa applicant’s employment is critical to the operation of the business because of his specialist skills, knowledge and experience.

   ·The growth of the business will be impeded without the visa applicant’s skills and Turkish language.

   ·The position has particular technical requirements and there is a scarcity of such skills in the local market. The business has not been able to keep suitably qualified employees.

   ·The services provided by the business require the PPIs to travel distances of up to 150 km from Griffith, to remote parts of NSW. The climate and work conditions are harsh and the hours are onerous.

   ·The business’ managers are undertaking an unsustainable workload.

5. The Tribunal has first considered the claim that the visa applicant has extensive relevant experience and unique skills. At the hearing it discussed with the review applicant the MRT’s findings in the decision relating to the visa applicant’s SC 457 visa application. The review applicant confirmed that the Tribunal in that case, in which he was also the review applicant, was not satisfied that the visa applicant has the skills, qualifications and employment background necessary to perform the tasks of a PPI and affirmed the decision in that case. When asked to comment on the Tribunal’s findings in that case, the review applicant indicated that there was a problem in relation to the way the Department obtained information from the visa applicant’s trainer. He indicated that there was also a problem with the interpretation at the Tribunal hearing and the member had to adjourn the hearing to arrange for another interpreter. (This is confirmed in that Tribunal’s decision record). This Tribunal notes the review applicant did not appeal the Tribunal’s decision to affirm the delegate’s decision to refuse the SC 457 visa application because she was not satisfied the visa applicant had the skills, qualifications and employment background necessary to perform the tasks of a PPI. This Tribunal is not bound by the decision in that case, however it appears that it does not support the submissions that the visa applicant’s experience and skills are an exceptional circumstance. Given the conclusions of the Tribunal in the SC 457 visa case, the Tribunal asked the review applicant why he considers the visa applicant has extensive relevant experience and unique skills. He indicated the visa applicant has been a farmer for many years, growing fruit and vegetables. He also worked for a large fruit and vegetable wholesaler in a market for a couple of years where he inspected the size, sweetness and ripeness of produce. His specialty is melons.

6. The Tribunal has considered all of the evidence in relation to the visa applicant’s skills and experience. It accepts he has worked as a farmer for many years. It accepts that he worked at a market for a wholesaler for a couple of years inspecting for fruit and vegetables. It does not consider this to be evidence that the visa applicant has extensive relevant experience as a PPI and unique skills. It does not consider this to be an exceptional circumstance.

7. The Tribunal has considered the review applicant’s submissions that functional English is not required because there are Turkish speaking workers who will be able to interpret for the visa applicant. It has also considered his submission that English is not essential for this position. At the hearing the Tribunal discussed with the review applicant the duties that would be undertaken by the visa applicant and the issue of whether English would be required. He asserted that he has employed other non-English speaking people in the PPI position and they have been able to perform the duties. He asserted that he, his brother and son will interpret for the visa applicant. The review applicant has asserted that the visa applicant will be able to perform the duties without English. The Tribunal is not satisfied that this is the case. The visa applicant has not performed the duties in Australia. When asked how the visa applicant will advise primary producers on disease and on the identification of pests and disease and on regulations, he asserted the visa applicant will not have to do that because he will only have to advise the review applicant. He asserts the visa applicant will not have direct contact with the farmers. This is despite the review applicant’s written description for the position provided with the visa application which stated that the position will advise primary producers on economic aspects of disease eradication and informing producers of diseases and impurities. While the Tribunal accepts the position is not required to perform every one of the duties in the ANZSCO description, the Tribunal considers these tasks to be important in carrying out the role. It takes into account that the review applicant has previously employed other non-English speakers in the position and that he and others will interpret for the visa applicant. However it remains concerned as to whether the visa applicant will be able to undertake these tasks effectively without functional English. It is not satisfied that this is an exceptional circumstance.

8. The Tribunal has considered the submissions that the visa applicant’s employment is critical to the operation of the business because of his specialist skills, knowledge and experience, and that the growth of the business will be impeded without the visa applicant’s skills and Turkish language. The Tribunal is not satisfied the visa applicant has specialist skills, knowledge and experience, as discussed above. At the hearing it discussed with the review applicant the growth in his business since the visa application was made. He told the Tribunal it has grown by 10 percent, both in terms of numbers of employees and significant contracts. The Tribunal notes the review applicant’s business has several Turkish speakers and that it employs people from Turkey, India, China, Korea and Nepal. Given the business’ growth since the visa application was made in June 2012, it is not satisfied the growth of the business will be impeded without the visa applicant’s skills and Turkish language. It is not satisfied these are exceptional circumstances.

9. The Tribunal has considered the submission that the position has particular technical requirements and there is a scarcity of such skills in the local market, and that the business has not been able to keep suitably qualified employees.  It has also considered the submission that the managers are undertaking unsustainable workloads. The Tribunal accepts that the Department has approved the nominated position as an approved appointment. It accepts that this confirms that the review applicant made the application for approval under the RSMS stream and that the Department was satisfied that the review applicant demonstrated a need for a paid employee in regional Australia and that the business met the requirements of the regulations.  It is not satisfied however that the review applicant has demonstrated that there is a scarcity of the skills the visa applicant possesses.

10. At the hearing the review applicant indicated that some of his SC 457 visa holders who were performing in the PPI position have returned to Turkey. The Tribunal accepts that the business has not been able to keep suitably qualified employees. However it does not consider this to be an exceptional circumstance in this case. Many businesses need to replace qualified staff.  The Tribunal accepts that the workloads of the managers may increase when the business loses staff. This is a common situation for businesses to be in. The Tribunal has taken into account the representative’s assertions that the review applicant has not been able to find suitable staff for this position. It notes however that the review applicant told the Tribunal at the hearing that, apart from an ad on his website and word of mouth, he has not really made efforts to fill the position since the visa application in June 2012. The Tribunal is of the view this suggests that there is not a serious need to fill this position. It does not accept that the staffing difficulties the business faces are so unusual or burdensome as to warrant a finding of exceptional circumstances in this case. The Tribunal is also not satisfied that this is a position that can only be filled by the visa applicant. Overall the Tribunal is not satisfied that any scarcity of such skills in the local market or the business’ difficulties in keeping suitably qualified employees are exceptional circumstances.

11. At the hearing the Tribunal asked the review applicant why the circumstances in this case set the business apart from many other businesses in regional Australia requiring technical staff to work in harsh conditions.  He indicated the distances and weather conditions make it difficult to find staff willing to undertake the role. The Tribunal has considered this evidence and the submissions that the services provided by the business require the PPIs to travel distances of up to 150 km from Griffith, to remote parts of NSW, and that the climate and work conditions are harsh and the hours are onerous. The Tribunal accepts that the conditions in which the business’ PPIs work are harsh and isolated. However it has formed the view that many applicants in the RSMS stream are seeking to fill positions in remote parts of Australia, where weather conditions are harsh.  It is not satisfied this is an exceptional circumstance.

12. The Tribunal has taken into account the submissions that another Tribunal member remitted a similar matter having found there were exceptional circumstances (1306391 – decided on 10 March 2014). The Tribunal explained to the review applicant at the hearing that it is not bound by the decision of the Tribunal in that case. It also notes that in that case the visa applicant, who did not have evidence of functional English or a diploma, had been working for the review applicant in Australia as a PPI since May 2011, having been granted a SC 457 visa in April 2011. The Tribunal notes in that case the Tribunal was satisfied, given that visa applicant’s years of work experience in the position, that the visa applicant had become an indispensable employee of the business. The Tribunal considers those circumstances to be different to the visa applicant’s circumstances in this case.

13. The representative also provided to the Tribunal other MRT decisions, where the members found there were exceptional circumstances. One matter relates to the position of welder, the other a baker. The Tribunal has considered those decisions however considers the circumstances in those cases to be different to this matter.

14. The review applicant told the Tribunal that he will organise English classes for the visa applicant if he is granted the visa. He said he does this for all of his visa holders who do not have functional English. The Tribunal accepts that he intends to do this but it does not consider this to be an exceptional circumstance.

15. After the hearing the representative made further written submissions in which he refers to an ‘exceptional appointment’. The Tribunal in this case is not deciding whether this is an exceptional appointment. It is considering whether the visa applicant meets cl.119.211(3) and whether there are exceptional circumstances. The representative notes the Regional Certifying Body supported the application and the Tribunal accepts this evidence. He claims that the circumstances in case 1306391 are identical to this case. The Tribunal has formed a different view, given the visa applicant in that case had worked for the review applicant’s business as a PPI in Australia for nearly 3 years.

16. Having considered all of the evidence in its entirety, the Tribunal is not satisfied that there are exceptional circumstances in this case. On the evidence before it, the Tribunal is not satisfied that exceptional circumstances apply. Therefore, the Tribunal finds the visa applicant fails to meet cl.119.211(3)(b)(ii) and he consequently does not meet cl.119.211 as a whole.

17. As the Tribunal is not satisfied that the applicant meets the requirements of cl.119.211, a criterion for the grant of the visa, the decision under review must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Migrant) (Class AN) visas.

    Denise Connolly
    Member