Duru (Migration)

Duru (Migration) [2023] AATA 871 (27 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Dr Kenneth Duru
Mrs Amaechi Uloma
Miss Nnedi Duru
Miss Nwamaka Duru
CASE NUMBER:  2017814
HOME AFFAIRS REFERENCE(S):         BCC2020/549059
MEMBER:Alison Mercer
DATE:27 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 27 January 2023 at 5:09pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – university lecturer – English language requirements – specified test not taken within 3 years before application made – unforeseen circumstances hindered efforts to take test – bushfires and COVID restrictions – test taken after application made and required score achieved – no exemption for applicants who undertook most education in English – unique or exceptional circumstances, unintended consequences of legislation and adverse effects for employer and students – exceptional knowledge and skills and international reputation in specialised field with multiple applications – research, publication, lecturing and supervising – members of family unit – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.15C, Schedule 2, cls 186.232, 186.311

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Home Affairs on 30 November 2020 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 24 February 2020. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of University Lecturer (ANZSCO code 242111).
The delegate refused to grant the visas because the applicant did not meet cl 186.232 of Schedule 2 to the Regulations, which required that at the time that the visa application was made, he had competent English (as defined in r.1.15C of the Regulations) or was in a class of people exempt from having to do so. The delegate noted that the Minister had not specified any exempt classes of people for these purposes, and further found that the applicant had not undertaken a specified English test in the 3 years immediately before the visa application was made. The delegate acknowledged that the applicant provided evidence of having had an International English Language Testing Systems (IELTS) test cancelled on 22 May 2020 due to disruptions caused by the COVID19 pandemic, and that he subsequently provided an IELTS test dated 11 July 2020. However, the delegate found that this could not be taken into account, as it was undertaken after the date of the visa application on 24 February 2020.
The delegate also refused to grant the second, third and fourth named applicants (the applicant’s wife and children) subclass 186 visas as they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.
The Tribunal received a review application from the applicants on 11 December 2020. It was accompanied by a copy of the delegate’s decision, the applicant’s resume, a statement from the applicant, information concerning the applicant’s cancelled IELTS test in May 2020 and his completed test in July 2020, and letters of support from academic colleagues at the Australian National University (ANU).
In his statement, the applicant made the following points:
…
1.    I am Kenneth Chijioke Duru, born on [Date] in Obehie, Nigeria with the passport number [Number].
2.   I am writing this letter to support my appeal to review the decision of the Australian Government Department of Home Affairs to refuse my visa application lodged on the 24 February 2020, Application ID 1860639082, file number BCC2020/549059.
3. My application for an Employer Nomination (EN) visa, subclass 186, Direct Entry stream was refused on the 30 November 2020 because I did not satisfy English Language requirements as prescribed by the provisions of the Migration Regulations 1994. While the reasons for the refusal have been advanced in the decision record, my appeal aims at demonstrating that unforeseen circumstances that are beyond my control hindered my deliberate efforts to complete the required English test before 24 February 2020 and contributed to the unfavorable decision.
4.   My nomination for EN (Direct Entry) was approved on 15 November 2019, and I was advised to submit my application to the Australian Government Department of Home Affairs within 6 months, from 15 November 2019. However, the following months were characterised by cataclysm, extreme difficulty and hardship for all Australian residents, because of bushfires and COVID-19 global pandemic. For example, it was impossible to get a location for the English test as all test centres were closed or inaccessible.
5.   The turbulent start of the year due to bushfires, and the unprecedented disruptions caused by COVID-19 compromised my efforts to complete an English Language test (IELTS test) before submitting my application.
6.   From September 2019 to March 2020, our region was impacted heavily by bushfires, and multiple states of emergency were declared across New·South Wales, Victoria, and the Australian Capital Territory. This was particularly a tough time for all residents, and even a tougher time for my family, having to care and cope with two little girls (age: 0 - 2 years) at the time.
7.   As the new year 2020 started, the bushfires persisted and became even more severe. The emergence of COVID-19 complicated the situation further. Several private and government institutions, including the Australian National University (ANU) where I work, adopted flexible approaches in order for citizens and residents to cope with the tough situations. These circumstances are beyond my control, in particular during a state of emergency, and limited my chances of writing an English test before my nomination expires. At this stage we were left with no other option than to submit the application and provide further supporting documents at a later time.
8.   Early on, the social and physical distancing measures and travel restrictions, imposed by the government and authorities to contain the spread of
COVID-19 led to the suspension of registrations for IELTS tests. However, on April 30, I was able to register for IELTS General Training test to be held on May 21, 2020 at Canberra Institute of Technology. Unfortunately, two days before the test (May 19, 2020), I got an email from the testing centre that the test has been cancelled, "as the venue has not approved use of their campus due to COVID-19 safety restrictions". Please see also the attached letter. This was also communicated to the Department of Home Affairs. I also requested the Department to extend my application owing to the difficult circumstances.
9.   I am excellent in the use of English Language. All my education, up to PhD, were in English Language. And throughout my career, English Language has been the only language of work and communication. For about 2 years now, I have been performing scientific research at the highest level·and lecturing Mathematics (in English Language) at the ANU. I never doubted that I would meet the minimum English requirements, even if I did the English test at a minimum or no preparation. Please see also my attached CV and the letter from the interim director of the Mathematical Sciences Institute (MSI) at the ANU.
10.   As the situation became a bit more controllable, I was assigned an earliest available test date July 11, 2020. I sat for the test and results were sent to me after two weeks on July 24, 2020. The same day, I forwarded the results with the TRF Number: 20AU000182DURK503G to the Department of Home Affairs. It took the Department more than 4 months to reach a negative decision, after I have placed many phone calls requesting for the status of my application.
11.   Once again, I understand that the department will generally apply the provisions of the regulations in arriving at their decisions. However, state emergency and the extremely difficult situation and hardship caused by bushfires, as well as the unprecedented disruptions caused by COVID-19 were not considered in the cited provisions of the regulation. This has left grey area that has held me in the crack created. Definitely, this cannot be the object of the regulation.
12. As evidenced by my attached CV, I am an excellent computational mathematician, and will contribute to the development of computational mathematics in Australia. This is also corroborated by Prof Roberts (MSI interim Director) in his letter and in the letter of my colleague and student, Christopher Williams. Being refused a visa on-shore will has significant negative consequences that will affect my chances of remaining in Australia. This application has cost us a lot financially and will lead to further financial hardship if the decision is not reversed.
13. I kindly appeal to you to consider the prevailing difficult circumstances that are beyond my control, and reverse this unfavourable decision.
…
The letter from the applicant’s ANU colleague, Christopher Williams, is dated 11 December 2020 and makes the following points:
…
To whom it may concern,
To my best understanding, Dr Kenneth Duru has had his Permanent Residence (PR)
application denied due to ambiguity in proving his English fluency. I am writing in the strong
support of the reconsideration of Dr Duru’s PR application. Dr Duru has tremendous potential
to contribute to Australian science and mathematics. He is fluent in English with a long
provable history before his PR application, and Australia must foster a strong scientific
modelling capability within our universities, especially in these unprecedented times. I will
offer my perspective as Dr Duru’s university supervisee and as a professional Australian
scientist. All opinions I express are my own.
Currently, Dr Duru is an MSI fellow at The Australian National University - a coveted and
highly competitive research position that attracted hundreds of applicants worldwide. Before
this, Dr Duru held positions in some of the world’s top research institutions such as Stanford
University and Ludwig Maximilian University Munich. In the past two years that Dr Duru has
been a part of the ANU, he has supported Australian computational mathematics through
aiding and assisting the MSI-special-year in computational mathematics and being a panel
member at the bi-annual CTAC conference. Regarding his research, he has brought Australia
international recognition through collaboration with top rank research institutions, and
consistent publication in prestigious scientific journals for the past two years. As Dr Duru’s
student, we recently submitted a paper to SIAM journal on scientific computing, a highly
ranked American applied-mathematics journal. Dr Duru is also assisting in the set up of an
ANU SIAM student chapter, the first one in Australia. Dr Duru is an asset to the Australian
mathematics and scientific community.
Whilst working with Dr Duru on our paper, it was clear that he had a sophisticated
understanding of the English language with a thorough knowledge of grammatical nuances.
Furthermore, Dr Duru taught a special topics course at ANU, which I audited, where he
prepared and presented hour-long recorded lectures in fluent English. Dr Duru has also
lectured two courses at the ANU before submitting his PR application. As an academic, Dr
Duru has a record of published documents for minimally the last eight years written in English.
When prompted to take the English requirement test, he did so and passed immediately. There
is no ambiguity in Dr Duru’s English ability, nor the provability of this concerning the timeline
of his PR application.
Lastly, Dr Duru’s research area is at the intersection of mathematics and scientific modelling.
Broadly, he works on the provability of numerical methods and quality assurances for
computational models which are used by the natural sciences. He primarily works on the
simulation of natural disasters. I have worked for government laboratories for the last five
years, and to my best knowledge, Dr Duru has a rare skillset of importance at the interface of
mathematical theory and application. This diversity affords him a seldom found ability to
contribute to applied problems with mathematically assured techniques.
Dr Duru has already contributed to the reputation of Australian science through impressive
publications, and the Australian computational community would be fortuitous to have him.
There is no question in Dr Duru’s English speaking ability, and an error in proving this in his application should not jeopardise who would be an excellent resident to Australia.
…
The other support letter is from Professor Stephen Roberts, Interim Director of Mathematical Sciences Institute, ANU. It is dated 10 December 2020, and provides as follows:
…
Dear Sir/Madam
I am the Director of the Mathematical Sciences Institute (MSI) at which Dr Kenneth
Duru is employed as an MSI Fellow, a prestigious 4 year research fellowship. Kenneth is
an excellent researcher in the area of computational mathematics, working on problems
in earth sciences and physics. In normal (non-covid) circumstances he would expect to be
offered a continuing position at a G08 Australian University in the next few years. It would
be to Australia's benefit to support his residency application and guarantee him staying
in Australia to contribute to the Australian computational mathematics community.
Concerning his declined application; First, I can attest that Dr Duru has excellent
English language skills, indeed English is Dr Duru's first language.
I understand his PR application was declined due to the initial lack of an English
language exam result. In normal times I'm sure Dr Duru would have provided the required language exam results with his initial application.
Unfortunately the time of his application was just at the time of the Canberra bush
_re state of emergency and then the covid-19 lock downs, and the timing of the results of
the English exam ended up being postponed until mid year. Dr Duru was worried that
his ANU sponsorship support would expire and so he made the decision to submit the PR
application without the language exam result, thinking that he could provide the results
once the exam results became available.
I would appeal to you to take into consideration unusual circumstances that the
covid pandemic has placed on Dr Duru, trying to navigate the requirement of providing
supporting documentation with the constraint of submitting his PR application within the period of his employer's sponsorship support.
…
On 18 March 2021, the Tribunal received an employer reference from Ms Frida Kamilo for the second named applicant, of the same date, the contents of which were as follows:
…
This is a character reference for Ms Uloma Amaechi.
Ms Amaechi has been an employee as a Client Service Officer of Housing ACT since March 2020 as a Contractor from SOS Agency.
I was her Team Leader and I have found Ms Amaechi a very resourceful staff member and had contributed to the improvement of our client services.
Due to her visa circumstances, she is facing some hardship due to childcare fees and this would affect her financial situation if her application was not successful.
Currently, Ms Amaechi is a Client Services Officer in other teams, due to her success in applying to further her career within Housing ACT. Ms Amaechi has received recognition from Management due to her excellent work ethics.
If her permanent residency is granted, she has an opportunity with employment within Housing ACT and other employment agencies.
Any consideration given to Ms Amaechi’s application for permanent residence would be much appreciated.
…
The Tribunal also received invoices demonstrating the child care costs incurred by the applicants due to their unresolved immigration status.
On 3 November 2022, the Tribunal wrote to the applicants to invite them to attend a hearing to be conducted by videoconference on 30 November 2022. They were requested to provide any additional submissions and/or documents to the Tribunal by 23 November 2022.
On 23 and 24 November 2022, the Tribunal received the following additional material from the applicants:
·letter of support dated 22 November 2022 from Osea Ikea, Director – Relationships, Judo Bank;
·letter of support dated 21 November 2022 from Emeritus Professor Stephen Roberts of the Australian National University (ANU);
·letter of support of November 2022 from Dean Alexander Muir;
·letter of support dated 10 November 2022 from Professor Andrew Hassell, Associate Director, Mathematical Research Institute, ANU;
·the applicant’s resume;
·statement from the applicant dated 23 November 2022; and
·copies of previous letters of support from December 2020.
In his statement, the applicant makes the following points:
…
1. I am Kenneth Chijioke Duru, born on [Date] in Obehie, Nigeria with the passport number [Number].
2. I am writing this letter to support my appeal to review the decision of the Australian Government Department of Home Affairs to refuse my visa application lodged on the 24 February 2020, Application ID 1860639082, file number BCC2020/549059.
3. My application for an Employer Nomination (EN) visa, subclass 186, Direct Entry stream was refused on the 30 November 2020 because I did not satisfy English Language requirements as prescribed by the provisions of the Migration Regulations 1994. While the reasons for the refusal have been advanced in the decision record, my appeal aims at demonstrating that unforeseen circumstances that are beyond my control hindered my deliberate efforts to complete the required English test before 24 February 2020 and contributed to the unfavorable decision.
4. My nomination for EN (Direct Entry) was approved on 15 November 2019, and I was advised to submit my application to the Australian Government Department of Home Affairs within 6 months, from 15 November 2019. However, the following months were characterised by cataclysm, extreme difficulty and hardship for all Australian residents, because of bushfires and COVID-19 global pandemic. For example, it was impossible to get a location for the English test as all test centres were closed or inaccessible.
5. The turbulent start of the year due to bushfires, and the unprecedented disruptions caused by COVID-19 compromised my efforts to complete an English Language test (IELTS test) before submitting my application.
6. From September 2019 to March 2020, our region was impacted heavily by bushfires, and multiple states of emergency were declared across New South Wales, Victoria, and the Australian Capital Territory. This was particularly a tough time for all residents, and even a tougher time for my family, having to care and cope with two little girls (age: 0 – 2 years) at the time.
7. As the new year 2020 started, the bushfires persisted and became even more severe. The emergence of COVID-19 complicated the situation further. Several private and government institutions, including the Australian National University (ANU) where I work, adopted flexible approaches in order for citizens and residents to cope with the tough situations. These circumstances are beyond my control, in particular during a state of emergency, and limited my chances of writing an English test before my nomination expires. At this stage we were left with no other option than to submit the application and provide further supporting documents at a later time.
8. Early on, the social and physical distancing measures and travel restrictions, imposed by the government and authorities to contain the spread of COVID-19 led to the suspension of registrations for IELTS tests. However, on April 30, I was able to register for IELTS General Training test to be held on May 21, 2020 at Canberra Institute of Technology. Unfortunately, two days before the test (May 19, 2020), I got an email from the testing centre that the test has been cancelled, “as the venue has not approved use of their campus due to COVID-19 safety restrictions”. Please see also the attached letter. This was also communicated to the Department of Home Affairs. I also requested the Department to extend my application owing to the difficult circumstances.
9. I am excellent in the use of English Language. All my education, up to PhD, were in English Language. And throughout my career, English Language has been the only language of work and communication. For about 4 years now, I have been performing scientific research at the highest level and lecturing Mathematics (in English Language) at the ANU. I never doubted that I would meet the minimum English requirements, even if I did the English test at a minimum or no preparation. Please see also my attached CV and the letter from the interim director of the Mathematical Sciences Institute (MSI) at the ANU.
10. As the situation became a bit more controllable, I was assigned an earliest available test date July 11, 2020. I sat for the test and results were sent to me after two weeks on July 24, 2020. The same day, I forwarded the results with the TRF Number: 20AU000182DURK503G to the Department of Home Affairs. It took the Department more than 4 months to reach a negative decision, after I have placed many phone calls requesting for the status of my application.
11. Once again, I understand that the department will generally apply the provisions of the regulations in arriving at their decisions. However, state of emergency and the extremely difficult situation and hardship caused by bushfires, as well as the unprecedented disruptions caused by COVID-19 were not considered in the cited provisions of the regulation. This has left grey area that has held me in the crack created. Definitely, this cannot be the object of the regulation.
12. As evidenced by my attached CV, I am an excellent computational mathematician, and will continue to contribute to the development of computational mathematics in Australia. This is also corroborated by Prof Roberts (former MSI Director) and Prof Hassell (MSI Associate Director for Research) in their letters and in the letters of my colleagues and students, Christopher Williams and Dean Muir. Being refused a visa on-shore will has significant negative consequences that will affect my chances of remaining in Australia. This application has cost us a lot financially and will lead to further financial hardship if the decision is not reversed.
13. I am currently supervising 2 Master’s degree students and 4 PhD students at ANU. If the negative decision is not reversed this will have dire consequences on their research and will disrupt their academic program.
14. I kindly appeal to you to consider the prevailing difficult circumstances that are beyond my control, and reverse this unfavourable decision.
…

The letter of support dated 21 November 2022 from Emeritus Professor Stephen Roberts of the ANU states as follows:
…
Dear Sir/Madam I would like to provide strong support for Dr Kenneth Duru’s application for Australian Permanent Residence.
This letter provides support in addition to the support I provided in Dr Duru’s initial PR visa application which concentrated on the interaction of covid with Dr Duru’s application process. In this letter I would like to provide support of Dr Duru’s strength to Australia’s computational science community.
I am a member of the Computational Mathematics research group in the Mathematical Sciences Institute (MSI) at Australian National University (ANU) for many years. I was Director of the MSI in 2020 and 2021. I retired in August 2021. I continue my relationship with the MSI and ANU as an Emeritus Professor.
Kenneth obtained a prestigious MSI fellowship, a four year post doctoral fellowship with minimal teaching requirements and with strong research support. During his time at the MSI I have had the pleasure of working with Kenneth on a number of fluid flow projects, for instance developing high order numerical boundary conditions for the Navier-Stokes equation, as well as developing well-posed boundary conditions for the Shallow water wave equation and the Serre equation.
These areas of research have profound influence on the efficient solution of wave propagation problems such as flood and tsunami modelling, radio and ultrasonic scattering, and seismic wave propagation. All these applications are extremely important to Australia’s environmental and industrial well being.
Dr Duru has an outstanding publication record as a computational mathematician. He publishes in the most prestigious computational mathematics journals such as Journal of Computational Physics, SIAM journals of Scientific Computing and Numerical Analysis and Numerische Mathematik, among others. He has a very strong citation record, which is building strongly. During his fellowship he has been very productive, for instance in 2022 he has 8 publications as measured by google scholar.
He also works with world leading groups in numerous application areas such as the Stanford group on earthquake simulation; the world leading high performance computing group based at the Technische Universite¨at Munchen (TUM); and recently his collaborative work on the solution of the Einstein equations. In all these application projects he is applying his computational mathematics skills to produce world leading simulation results.
Kenneth is truly a world expert on the numerical solution of hyperbolic (wave) equations. To obtain stable and efficient methods it is necessary to develop algorithms which mimic properties from the original partial differential equations. This is not as easy as it might first appear as even the simple integration by parts formula doesn’t translate easily to the discrete setting. Kenneth is an expert in working and developing methods based on discrete summation by parts methods. He has recently developed an important method which involve upwind discrete difference operators with excellent dispersion properties.
Boundary conditions add another level of complexity. The development of an overall excellent method needs to pay special attention to the boundary conditions. Once again Kenneth is an expert in the use of so called “Perfectly Matched Layers” to produce boundary algorithms which provide non reflecting boundary conditions which maintain the stability properties of the interior methods based on summation by parts formulas. Kenneth has produced an impressive collection of theoretical papers analysing such methods and implemented them in his world beating earthquake (elasticity) simulation code WaveQLab3D.
Another impressive component of Kenneth’s skills is his ability to implement his methods on high performance computers (which has its own challenges). This combination is actually quite unusual. Dr Duru is the lead of two high performance software projects, both of which utilise Kenneth’s algorithms mentioned above, implemented to run on peta and exa scale machines.
Evidence of the superiority of Dr Duru’s methods (and implementation) can be found in his work with the earth science group at Stanford where he has developed software (WaveQLab3D) which is orders of magnitude more efficient and accurate than competing methods as has been demonstrated on benchmark problems for earthquake simulations in Southern California.
Another project is the development of the Exascale software package, ExaHype, which is a large European funded project (based at TUM) to develop software to solve large scale fluid flow problems on the largest supercomputers. He is one of the lead developers of this package.
From my own observations I think a particular strength of Dr Duru is his enthusiasm and energy to seek out and tackle new problems and projects with a range of collaborators. During his time at ANU he has formed a large number of collaborations, which have all been very successful (resulting in publications in excellent journals). He has built collaborations and projects with members of the Research School of Computing and the Research School of Earth Science at the ANU. In addition he has a myriad of collaborations with outstanding researchers world wide.
Dr Duru has also worked with at least 4 of our MSI Masters and PhD students. At least 3 of those students have produced publications based on projects suggested by Dr Duru. In fact I have been working with Dr Duru in the supervision of two of my PhD students. I have observed that he is an excellent supervisor. He provides great project ideas and research directions as well as emphasising the mathematical core of the projects. I have found him an excellent co-supervisor and the students have definitely appreciated his insightful and deep contributions.
In the teaching area, Dr Duru has been very proactive in the presentation of honours level courses in advanced computational mathematics. The number of research students he has attracted is testimony to his teaching skills.
In conclusion, Dr Duru is an outstanding computational mathematician. He has and will continue to build an impressive research program, which will attract research students and international collaborations, and research funding. He will continue to build an impressive high level teaching program in computational mathematics, in particular in the area of computational solution of evolution partial differential equations (PDE). I would rank him as one of the top young computational mathematicians in Australia, and is internationally highly ranked.
It would be a great advantage to Australia if he is able to obtain a Permanent Residence visa which would allow him to extend his research and teaching contribution to Australia.
In his letter of 10 November 2022, Professor Andrew Haskell of ANU states as follows:
…
I write this letter as Dr Kenneth Duru’s formal supervisor in the Mathematical Sciences Institute (MSI) at the [ANU]. I support Dr Duru’s appeal in respect of his application for a Permanent Residency visa in Australia.
Dr Duru has a very good command of English. English was one of the two languages that Dr Duru spoke growing up in Nigeria, where English is the official language. All his education in Nigeria was conducted in English. Dr Duru obtained his PhD in computational mathematics in Europe, and spent several years at Stanford University in the United States (another English language environment), before accepting a position at MSI. As his formal supervisor, I have talked with Dr Duru on many occasions, and I always found he had a more than adequate command of English. I have also seen his student evaluations, where students respond to a number of questions about their lecturers. These student evaluations are anonymous and are not released to the lecturer until after the students’ grades have been finalised, thus eliminating the possibility of biased responses. For Dr Duru’s second semester lecture course of 2021, 44 out of 49 students responded ‘agree’ or ‘strongly agree’ to the statement ‘Overall, this course was a valuable learning experience.’ Other responses were similarly positive. That is strong evidence that ANU students have no difficulty in understanding Dr Duru’s English, otherwise one would expect much less favourable results.
It follows that English proficiency should not be a concern when the Australian Government is evaluating Dr Duru’s visa application.
I sincerely help that Dr Duru’s appeal is upheld, not just for his sake, but for the sake of some of our postgraduate students. Dr Duru is one of MSI’s most committed postgraduate supervisors, supervising 2 Masters and 4 PhD students. In the event that Dr Duru’s visa issues are not resolved, that may cause significant disruption to their studies.
…
One of Dr Duru’s students, Dean Muir, states as follows in his letter of November 2022:
…
To whom it may concern,
As I understand it Dr Kenneth Duru has had his application for Permanent Residency rejected due to an English language testing requirement. I strongly support a reconsideration of this decision. Dr Duru has contributed significantly to the Australian research community over time, and has much more to contribute in the future.
The following opinions are my own, informed by my experience learning from, and working with, Dr Duru as an Honours and now PhD student over the past four years at the Australian National University.
I have taken courses taught by Kenneth both as an Honours student and through auditing them during my PhD. Dr Duru is also a member of my PhD supervision panel and I work with him on a near daily basis. We are currently working on a publication due to be submitted to the Journal of Computational Physics before the end of the year. Further work with Dr Duru and another PhD student at a recent hackathon has also presented me with an opportunity to co-author papers in the supercomputing sphere.
My work with Dr Duru has also led me to present at the Simons Workshop 2022, a meeting of scientists studying fusion plasma to revolutionise energy generation. This work is also allowing me to present at the Computational Techniques and Applications conference in Brisbane, as well as the annual meeting of the Australian Mathematical Society in Sydney this year. Dr Duru will also be presenting at these conferences. I have also participated in several other conferences in Australia where Dr Duru has provided a presentation on his work.
These opportunities have only arisen because of Dr Duru’s presence at the Australian National University. He has also supported many other students with research opportunities, both as a supervisor and by having an open door to students and others in the Institute. Many others in my own research group have benefited from his willingness to share his expertise.
Dr Duru has clearly demonstrated he is an asset to the Australian community through his research output and teaching. His area of research provides him with a rare and valuable skillset in the Australian computational mathematics community, which lies at the intersection of theory and modelling. The computational methods he studies are useful in applications in a wide variety of areas, including the modelling of earthquakes and now, via my own research, in modelling for fusion plasmas.
On a personal level, Dr Duru has provided me with valuable support in my academic and learning career. My PhD would be much more difficult without his support. More broadly, Dr Duru is very approachable and willing to help all students. I know other PhD students who are not directly supervised by Dr Duru, but who have gone to him for advice and assistance with their research.
Given his teaching experience at the Australian National University and the academic presentations he has delivered at Australian conferences, Dr Duru clearly demonstrates an ability to communicate well in English. He also has numerous publications in scientific journals, for which the language of communication is English.
I reiterate my strong support for a reconsideration of Dr Duru’s application for permanent residency. As I understand it, a decision by the Administrative Appeals Tribunal against Dr Duru’s Permanent Residence could force him to leave the country. This would have a severe impact on his career, and though this, disrupt my work with him as his PhD student. It would also have a negative impact on the many students under his supervision and others who seek his advice regularly.
I believe the above illustrates his contribution to the Australian research community and to innovation and development and his potential to contribute to Australia’s higher education sector through his teaching. My experience is that Kenneth is friendly and is always willing to help, making him a valuable member of our community.
…
In her letter, Ms Osea Ikea makes the following points:
…
I write this letter in full support of my dear friend and her beautiful family. Our families have known each other for over 3 years. Starting at our first meeting in March 2019, when I picked her from her residence in Braddon, to attend our local community meeting. At the time I was an executive member of both the Igbo Community and Nigerian Association in Canberra. As a growing cultural community, it’s important for us to connect with new arrivals and help them to adjust to life in Australia. Fast forward to November 2022, I consider her as my very own sister, and I can’t imagine my life in Australia without her and her family. Personally, I was blessed to move to this country 22 years ago with my parents and siblings and I’ve been fortunate to call Canberra home. As a diverse community, we welcome and strive to attract hardworking and generous of spirit individuals, who will further bolster our cultural community and the wider Canberra population. I deem Uloma and her family as such individuals. Both contributing to the higher education and government sectors, fulfilling crucial skill gaps that are in critical demand. Their contribution to our community will be greatly missed, should they not be successful with their appeal. I implore for your tempered judgement of their case and circumstance. In your interactions with Uloma and her family, I ask that you consider the great contributions they have made to their local community and the further contributions they will make. As a young professional family, Canberra would be lucky to retain such minds and individuals within its confines. I truly believe that the Australian spirit of fairness and a battler’s mindset will shine through in your review of their case.
…
The Tribunal also received a letter from IDP IELTS to the applicant dated 22 May 2020, indicating that the English test scheduled to be taken by him on 21 May 2020 has had to be cancelled due to ‘circumstances relating to the venue’s COVID19 status,’ and the organisation was trying to reschedule. The writer asks that consideration be extended to the applicant due to these circumstances. Also provided was the applicant’s IELTS test result for issued to him on 22 July 2020, indicating that he obtained an overall band score of 6.5 (with scores of 6.0 for listening, 6.5 for reading, 7.5 for writing and 6.5 for speaking) in a test he undertook on 11 July 2020.
The first and second named applicants appeared before the Tribunal by videoconference on 30 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Professor Stephen Roberts of MSI at ANU, and Mr Dean Muir, a current PhD student being supervised by the applicant.
The applicant told the Tribunal that he understood that he had to lodge his visa application within 6 months of his employer’s nomination being approved, and that he understood that he was unlikely to have to undertake an English test as he had been educated entirely in English to post doctoral level, and other colleagues with similar backgrounds had not been required to undertake a formal English test in order to apply for permanent residence. Once he understood that he must undertake a formal English test, he did so as soon as he was able to. However, he encountered significant delays in being able to do so due to the Canberra bushfires, and then the COVID19 pandemic, both of which affected the availability of test venues and dates. Nevertheless he successfully sat an IELTS test in July 2020, the results of which were provided to the Department prior to its refusal decision.
The applicant queried how a technical breach of the Regulations could result in the refusal of the visa applications, when it was clear that the applicant had, and had always had, the required level of English proficiency. In response to the Tribunal’s query, the applicant confirmed that his area of expertise is computational mathematics, which had a range of applications of both an academic and commercial nature, such as climate change modelling, prediction of floods and earthquakes, and confined fusion which had the potential to generate unlimited renewable energy. The applicant further confirmed that he is currently supervising 4 PhD students (including Mr Muir) and 2 Masters students at ANU, and that he was convening a number of sessions at a conference on Computational Techniques and Applications currently taking place in Brisbane, at which a number of his ANU students were also attending and/or participating.
The second named applicant told the Tribunal that she is still employed at Housing ACT as a level 5 administrative officer, and that this organisation had played a critical role in housing homeless people in the ACT, particularly during the COVID19 pandemic from March 2020 onwards. She further confirmed that their elder daughter is currently attending pre-school, where she is well settled, and will attend kindergarten in 2023. Their younger daughter is aged 2, and the couple is expecting a third child in mid-March 2023.
Professor Roberts confirmed the contents of his written statements, and noted that if ANU had nominated the applicant later than November 2019, they would have nominated him in the Global Talent category, as he had an international reputation in his field of computational mathematics that was, and would continue to be, of significant benefit to Australia. Professor Roberts noted that he became director of the MSI at ANU in March 2020, at which point the immigration process was already underway. Professor Roberts further noted that it would be unfair and a great loss if the applicant were not able to remain in his current role at ANU in Australia, and would affect the present students currently being supervised by the applicant, as well as future students in the field.
Mr Muir confirmed that he is completing his PhD in confinement fusion with the applicant as 1 of his supervisors. He told the Tribunal that he speaks with the applicant daily about his work, and they are preparing for publication. He noted that he and at least half the other ANU computational mathematics students were attending the conference in Brisbane and the applicant’s role in supporting their work was crucial. He further noted that the area of confinement fusion was already the subject of international research and that there were start up companies in Europe in the field, as its commercial applications were significant.
The Tribunal discussed with the applicants its view that cl.186.232 and r.1.15C (which defines ‘competent English’) were very strictly worded, and confined decision makers (including the Tribunal on review) to English tests undertaken in the 3 years prior to the subclass 186 visa application being lodged. It further noted that although there were previously English test exemption categories for people who had undertaken most of their secondary and/or tertiary education in English, this exemption category had been removed from the subclass 186 Direct Entry stream visa by the time that the applicants made their application on 24 February 2020.

The Tribunal noted that in the event of an unsuccessful Tribunal review application, it was open to the applicants to seek Ministerial intervention pursuant to s.351 of the Act, noting that this was a personal, no-compellable power of the Minister for Immigration to substitute a more favourable decision than that of the Tribunal in cases involving unique and/or compelling circumstances. It noted that the guidelines for this process could be found on the Department’s website, and that it appeared to the Tribunal that the applicants’ circumstances were similar to some of those specified in the guidelines. The Tribunal undertook to defer its decision until 14 December 2022 to enable the applicants to consider whether they wished the Tribunal to refer the matter for Ministerial consideration, and to obtain migration advice about this process.
On 12 December 2022, the Tribunal received the following additional material from the applicants:
·letter to the Minister for Immigration;
·copy of previous submissions to the Tribunal;
·copy of previous correspondence between the applicant and IDP regarding the lack of availability of testing dates and sites in 2020 due to COVID19 restrictions;
·copy of Department refusal decision; and
·updated copy of the applicant’s resume (previously provided to the Tribunal).
The contents of the applicant’s letter to the Minister is as follows:
…
We are writing to kindly seek your intervention in our current visa situation. Please, this is an urgent supplication, we will be glad if you can treat this matter with all urgency.
Our appeal to the AAT to overturn our visa (employer nomination subclass 186) refusal by the Department of Home Affairs Australia was not successful because I was unable to meet a technical English Language requirement as stated in the Migration Regulation Act (cl.186.232). Please accept this email as a written consent to exchange information with the AAT in regards to our application, case number - 2017814.
In January 2019, my wife and I moved from Munich Germany to Australia with our first daughter who was 14 months at the time. In August 2019 we welcomed a baby girl who is now 3 years old, and we are currently expecting another baby by March 2023.
We love this country and decided to settle here due to the wonderful people we have met and the ease to integrate within the society without barrier.
I am currently employed at the Mathematical Science Institute of the Australian National University, at the academic level C. At ANU, I help educate the next generation of numerical analysts and contribute to the development of computational math in Australia. I am currently supervising 2 MSc students and 4 PhD students, including 2 Australian citizens, at ANU. If the negative decision is not reversed this will have dire consequences on their research and will disrupt their academic program.
I am an excellent computational mathematician, please see my CV attached. Since arriving ANU, I have published over 9 scientific articles in premier international journals. This is a very high research output for mathematics, and even more so for an early/mid-career mathematician. The unique strength of my research is that it contributes to each of the three foundations of computational mathematics: rigorous mathematical analysis, accurate numerical methods and the production of numerical software that can run efficiently on a modern or next-generation supercomputers. The outcomes of my research have immediate commercial potentials and lead to advances in technologies for exploring mineral and energy resources, to mitigate earthquake/tsunami risks and build a society more resilient to natural hazards. My research also benefits Australian society by developing tools for industry.
My wife is employed full-time as a Senior Client Engagement Officer at the Community Services Directorate within the ACT government. She performs her work at the highest level and supports the most vulnerable members of the Canberra community to access public housing. Please find the attached support letter from her Director at Housing ACT.
We are very productive members of the ACT community, and will continue to give our possible best for the betterment of our communities and Australia. Please, may I also speculate that this regulation was not intended to prevent people like me and my wife from living in Australia. I have also attached some of the supporting letters we lodged with our appeal to the AAT. The letter to the AAT contains full details of our circumstances prior to the Visa lodgement and the refusal letter from the department of home affairs for your reference.
The reason for the refusal of our visa application was mainly due to a glitch which was caused by the unforeseen uncertainties and difficulties generated by bushfires and COVID19. For more details, please see the attached appeal letter and the decision of the Department of Home Affairs. Unfortunately, the AAT member has decided to affirm the decision of Department of Home Affairs because she lacked the powers to vary the regulation.
Our substantive visa (TSS 482) ran out this August 31, 2022 and we are currently on Bridging Visa A. My family and I are in limbo as to what the future holds for us in Australia, and my students are unsure of their academic program. To this end we will be happy if you can treat this matter with all urgency it deserves.
We kindly beckon on you for succour. We will be happy if you could intervene on our behalf, and use your good offices to ensure that this harsh decision is reversed as soon as possible. Thanking you in anticipation.
For the following reasons, the Tribunal has concluded that the decision under review be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
English language proficiency
At the time the visa application is made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified in legislative instrument LIN 19/216: cl 186.232.
‘Competent English’ is defined in reg 1.15C of the Regulations. A person will have competent English if he or she either:
·undertook a specified language test in the three years preceding the visa application and achieved a specified score; or
·holds a specified passport.
The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.
The Tribunal has reviewed LIN 19/216, and is satisfied that it does not contain any category of exempt people for the purposes of cl.186.232.
Accordingly, the applicant must meet the definition of ‘competent English’ in r.1.15C. The Tribunal has reviewed IMMI 15/005, and is satisfied that the specified passports referred to do not include a Nigerian passport, as held by the applicant.
The Tribunal must therefore be satisfied that the applicant undertook a specified language test in the 3 years preceding the visa application and achieved the specified score for that test, as set out in IMMI 15/005.
The Tribunal notes that in the online visa application, the applicant indicated that he had not undertaken a specified English test in the previous 3 years, but stated that his entire education, from primary school to his PhD qualification, had all been undertaken in English, and that it was his first language. The Tribunal accepts this to be the case.
The Tribunal is satisfied that the applicant holds a passport issued by the Republic of South Africa, which is not a passport specified in IMMI 15/005 for these purposes. Accordingly, the applicant must be able to demonstrate that, at the time he made his visa application on 19 February 2020, he had undertaken a specified language test in the 3 years preceding the visa application and achieved a specified score.
It is not disputed that the applicant had not done so. The Tribunal acknowledges that he undertook an IELTS test on 11 July 2020 in which he obtained the required scores for competent English. While these scores exceed those listed in IMMI 15/005 for an IELTS test, this test was not undertaken in the 3 years prior to the lodgement of the subclass 186 visa application on 24 February 2020. It therefore cannot be taken into account for the purposes of cl.186.232.
The Tribunal acknowledges the dismay expressed by the applicant and his Australian employer, principally about the fact that:
·the applicant’s first language in Nigeria (his home country) was English, and this was the medium of instruction for his education, including his tertiary qualifications in Mathematics and his post-doctoral fellowship in the US;
·his English level was considered proficient (without formal testing) for his original temporary subclass 482 visa he obtained through his Australian employer, ANU, in 2018 and his Australian employer, academic colleagues and students endorse theapplicant’s English excellent proficiency. He has written and co-written and published numerous scientific articles in English;
·the applicant tried to undertake a formal English test prior to lodging the subclass 186 visa application, but was hampered by the lack of availability of test venues and dates due to COVID19 restrictions; and
·the applicant subsequently undertook an IELTS test in July 2020 in which he exceeded the required scores for competent English.
However, the Tribunal is unable to require or modify the requirements of cl.186.232. Given that there is no exemption category for the purposes of subclass 186 visa applications, and the applicant had not undertaken a specified English test in the 3 years immediately prior to applying for the subclass 186 visa, the Tribunal must find that cl 186.232 is not met.
The applicant has only sought to satisfy the criteria for a subclass 186 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.
The Tribunal must also affirm the decisions not to grant subclass 186 visas to the second, third and fourth named applicants, as it finds that they do not meet the secondary visa criteria in cl.186.311 requiring them to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they meet the primary visa criteria in their own right.
Ministerial intervention
In the event of an unsuccessful review application, the applicants have asked the Tribunal to refer this matter to the Minister for consideration of the Minister’s power to intervene and grant them a visa pursuant to s.351 of the Act.
Under s.351 of the Act, the Minister can substitute for a decision of a review tribunal a decision that is more favourable to a person, if he or she thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to determine, and the Minister’s power to intervene is personal and non-compellable. This means that the Minister does not have a duty to use, or consider using, any of the powers.
There are Departmental guidelines (most recent version 1 January 2023) setting out what kinds of cases might result in Ministerial intervention, and also circumstances in which the Minister considers it would be inappropriate to intervene, as follows:
…
4. Unique or exceptional circumstances
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
·     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
·     compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
·     exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia
·     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
·     the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control
·     a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country
·     the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.
5. Other relevant information
5. Other relevant information
For all cases referred to me under these guidelines, the Department will provide information on any other relevant issues, including the following:
·     circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations
·     circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme
·     whether the continued presence of the person in Australia would pose a threat to an individual in Australia or to Australian society or security or may prejudice Australia’s international relations
·     whether there are character concerns in relation to the person, particularly concerns related to criminal conduct
·     information about a person’s history of compliance with Australian laws, including migration laws, such as:
oany offence or fraud against the migration or citizenship legislation
oany failure to comply with their visa conditions
oany periods as an unlawful non-citizen in the community
otheir history of cooperation and engagement with the department to resolve their immigration status, particularly in relation to identity and travel documents
·     details of any ongoing court proceedings challenging a decision related to the case and any outcome available before I consider the case
·     the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.
CASES THAT SHOULD NOT BE BROUGHT TO MY ATTENTION
6. When the powers are not available
My intervention powers are not available if:
·     there is no review decision on the case by a relevant review tribunal or
·     I have exhausted my power in relation to a review tribunal decision because I have already intervened to grant a visa.
7. Inappropriate to consider
Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider. The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing:
·     the request is made by a person who is not the subject of the request or their authorised representative
·     the person is in the community and:
ois an unlawful non-citizen and remains an unlawful non-citizen throughout the course of their Ministerial intervention request; and/or
odoes not cooperate in ensuring that a valid travel document is available (or has not satisfied the Department that they are stateless)
·     the person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa
·     the person’s visa has been cancelled because they breached their visa conditions
·     the person has had a visa refused because they did not comply with the conditions of a previous visa
·     the person has been refused a visa or has had a visa cancelled on character grounds
·     ASIO has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment (ASA) which remains in effect
·     the person could apply for a Partner visa onshore but is subject to an 8503 condition (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided
· the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations)
·     the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore
·     the person has left Australia
·     the person has an ongoing application for a substantive visa (either onshore or offshore) with my Department
·     the person has an ongoing application for merits review of a visa decision with a relevant review tribunal
·     the person has had a remittal or a set aside decision from a relevant review tribunal or a court
·     the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E
·     the person has an ongoing Ministerial intervention request under any of the powers covered by these guidelines
·     a Notice of intention to remove has been issued to the person, and the Ministerial intervention request has not been initiated by the Department
·     the person holds a Bridging visa E with visa condition 8512, which specifies that the person must leave Australia by a specified date
·     the request raises claims only in relation to Australia’s non refoulement obligations.
There is no evidence before the Tribunal to indicate that the applicants’ case falls within the scenarios set out in the list of cases where the Minister has indicated that they would not intervene.
The Tribunal notes that the examples given above for what might constitute ‘unique or exceptional circumstances’ are non-exhaustive.
The applicants’ reasons for seeking Ministerial intervention can be summarised as follows:
·the application of the relevant legislation leads to unfair or unreasonable results in this case. While it is conceded that the applicant did not undertake a specified English test in the 3 years preceding the subclass 186 visa application, it is clear that he had, and continues to have, competent English, sufficient to operate in high level academia in Australia;
·the applicant tried to undertake English testing around the time of his visa application but was hampered by the lack of testing sites and dates in the ACT, which were affected by COVID19 related restrictions;
·the applicant is a highly qualified and highly skilled academic in Computational Mathematics with an international reputation in his field who occupies a crucial and niche role with his Australian employer, the ANU. If he were unable to continue in his role for this employer in Australia, it would have significant adverse effects on his employer and a number of its PhD and Masters students. It would also mean that the applicant would no longer be able to contribute to research in scientific areas vital to Australia’s interests;
·the second named applicant is employed on a full time basis in the ACT public service in a senior coordinator role in the field of housing, and contributed to the work of that area during the COVID19 pandemic;
·the applicant and his family have lived in Australia since 2019, and his youngest child will be born here. The family is well integrated into the Australian community, having lived in the ACT for the past 3+ years.
·the first named applicant has brought, and would bring, exceptional scientific expertise and benefit to his research projects and student supervision, and to the scientific and broader community in Australia, as recognised by the letters of support from his colleagues and students in Australia.

The Tribunal is of the view that this case involves clearly unintended consequences of legislation, such that a highly skilled applicant with competent English who otherwise appears to meet all of the requirements for the grant of permanent residence in the subclass 186 visa category, is denied a visa on a technicality, given that he demonstrated through a specified test undertaken shortly after making the visa application that he has competent English. The Tribunal is of the view that the application of relevant legislation leads to unfair or unreasonable results in this case, particularly since it notes that the applicant tried to sit an English test at the time that he made his visa application but was unable to do so due to the limited availability of testing at that time.
The Tribunal is also of the view that the applicant has exceptional skills in his field of Computational Mathematics that he is contributing to his employer, its students and to the Australian scientific community more broadly. Moreover, the Tribunal notes that while the Australian government’s National Skills Commission Skills Priority List for 2022 (the most recent one issued) does not indicate that there is a shortage of University Lecturers or Mathematicians per se, the supporting evidence from the applicant’s colleagues clearly indicates that his particular skills and experience are rare and valuable in Australia.
When taken together, and cumulatively, the Tribunal is satisfied that the factors in the applicants’ case constitute unique and exceptional circumstances which warrant consideration by the Minister pursuant to s.351 of the Act, and it refers the case to the Minister for this purpose.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
Alison Mercer
Member

[2023] AATA 871

27 January 2023

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