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

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).
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.
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.
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.
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.
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.
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.
The review applicant was represented in relation to the review by its registered migration agent who attended the hearing by conference telephone.
For the following reasons, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1308777 (Migration)

Details

AGLC: 1308777 (Migration) [2015] AATA 3110
Case: [2015] AATA 3110
Decision Date: 10 July 2015

CaseChat Overview and Summary

The case involved an application for an Employer Nomination (Migrant) (Class AN) visa by a Turkish national seeking to work as a Primary Products Inspector in Australia. The delegate had refused the application on the basis that the applicant did not meet the requirement of cl.119.211(3)(b) due to the absence of exceptional circumstances and a lack of evidence of functional English. The review applicant contested the decision, arguing that the applicant had extensive practical experience in the field and that the business would benefit from his hands-on skills. The applicant also noted that they had Turkish-speaking employees who could assist with communication.

The central legal issue for the Tribunal was whether the applicant met the requirements of cl.119.211 of the Migration Regulations, specifically whether the applicant's practical experience and the employer's circumstances constituted exceptional circumstances that would warrant a visa grant despite the lack of functional English and formal qualifications. The Tribunal had to assess the weight of the applicant's experience and the business's need for skilled workers against the legislative criteria for the visa.

After reviewing the submissions and evidence, the Tribunal concluded that the applicant did not meet the criteria for a visa under cl.119.211. The Tribunal found that while the applicant had relevant experience, it did not constitute exceptional circumstances that would overcome the statutory requirements. The lack of functional English and formal qualifications was a significant factor in the Tribunal's decision. Consequently, the Tribunal affirmed the delegate's decision not to grant the visas.

The Tribunal's decision was based on a careful consideration of the statutory requirements and the evidence provided. The Tribunal determined that the applicant's experience, while valuable, did not sufficiently outweigh the statutory criteria. The Tribunal's affirmation of the delegate's decision underscores the importance of meeting specific eligibility requirements for skilled migration visas in Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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