Siriwardana (Migration)

[2017] AATA 1253

Siriwardana (Migration) [2017] AATA 1253 (3 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mahamaya Liyanamohottige Manil Marvyn    Siriwardana
Mrs Nimali Siriwardana
Master Mahamaya Liyanamohottige Madushka Siriwardana
Miss Mahamaya Liyanamohottige Heshani Siriwardana

CASE NUMBER:  1514047

DIBP REFERENCE(S):  BCC2015/862550

MEMBER:Katie Malyon

DATE:3 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 03 August 2017 at 5:16 pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Skills assessment – Cook– Incorrect advice from migration agent – No Trades Recognition Australia assessment – Requisite qualifications and experience – Exceptional circumstances – Ministerial intervention referral

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulations 1994, Schedule 2, cl 187.234

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 17 March 2015.  At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme) (Subclass 187 visa).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Agreement stream.

4. In the present case, the first named applicant, Sri Lankan national Mr Mahamaya Liyanamohottige Manil Marvyn Siriwardana, is seeking the visa in the Direct Entry stream to work in the nominated position of Cook.  This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not otherwise eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because Mr Siriwardana did not meet cl.187.234 of Schedule 2 to the Regulations. The provisions of this clause are extracted in the Annexure to this decision.  By way of summary, the delegate decided that Mr Siriwardana did not have the requisite skills and qualifications for the nominated occupation of Cook at the time of his application.  A copy of the delegate’s decision was provided to the Tribunal.  

6. The applicants appeared before the Tribunal on 14 July 2017 to give evidence and present arguments.  Evidence was received not only from Mr Siriwardana but also his son, Master Madushka Siriwardana, and his daughter, Miss Heshani Siriwardana.  In addition, the Tribunal received oral evidence from Mr Dananjaya Sandirigama, a Director of Fusion Canberra Pty Ltd trading as Banana Leaf Restaurant and Café (Banana Leaf).  The Regional Sponsored Migration Scheme Nomination application made in respect of Mr Siriwardana by Banana Leaf was approved by the Department on 26 August 2015.  The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing because he is based in Melbourne.

7. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. However, for reasons set out below the Tribunal has decided to refer the matter to the Department for consideration by the Minister pursuant to s.351 of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether, at the time of applying for his Subclass 187 visa, Mr Siriwardana met the skills and qualifications requirements set out in cl.187.234 of Schedule 2 to the Regulations.

   Skills and qualifications

9. For applicants in the Direct Entry stream, cl.187.234 of Schedule 2 to the Regulations requires that, at the time of application:

   ·     the applicant is in a specified class of persons (exempt persons); or

   ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application); or

   ·     if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

10. In respect of Subclass 187 visa applications lodged prior to 1 July 2015, the relevant classes of exempt persons have been specified in IMMI 12/060, and the occupations and relevant assessing authorities have been specified in IMMI 12/096.  For the skills assessment, if the visa application was made on or after 28 October 2013, the assessment cannot be one for a Subclass 485 (Temporary Graduate) visa.  For visa applications made on or after 1 July 2014, the date of the assessment must not be more than 3 years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

11. Mr Siriwardana confirmed at the hearing that, at the time of his Subclass 187 visa application, he was nominated in the occupation of Cook.  Accordingly, he is not a person who was to be employed as:

    ·   a Minister of Religion ANZSCO Code 272211;

    ·   a Researcher, Scientist or Technical Specialist at ANZSCO Skills Levels 1 or 2; or,

    ·   an Academic as University Tutor ANZSCO Code 242112, a University Lecturer ANZSCO Code 242111, or Faculty Head ANZSCO Code 134411

    and, as such, is therefore not an exempt person under Class 1 of IMMI 12/060.

12. As noted in the delegate’s letter, Mr Siriwardana’s earnings with Banana Leaf will be $53,905 per annum.  This is less than the current Australian Taxation Office’s top individual income tax rate of $180,001.  Accordingly, Mr Siriwardana is not exempt from the skilled requirement as a person who falls within Class 2 of IMMI 12/060.

13. Departmental records show and Mr Siriwardana confirmed at hearing that, at the time of application, he was (and continues to be) a Sri Lankan national.  In the circumstances, he did not hold a Subclass 444 or Subclass 461 visa as these visas are relevant to nationals of New Zealand and their family members living in Australia.  Mr Siriwardana is therefore not an exempt person under Class 3 of IMMI 12/060.

14. On this basis, the Tribunal finds that Mr Siriwardana was not within any of the 3 classes of exempt persons specified by the Minister at the time of his Subclass 187 visa application. He therefore does not meet the requirements of cl.187.234(a) of Schedule 2 to the Regulations at the time of application.

15. The Tribunal has considered if Mr Siriwardana meets the criteria set out in cl.187.234(b) of Schedule 2 to the Regulations. This requires him to satisfy 6 cumulative elements, one of which is that his occupation is specified by the Minister in an instrument for the purposes of this clause. The relevant instrument is IMMI 12/096 and the occupation of Cook ANZSCO 351411 is an occupation specified by the Minister in relation to cl.187.234(b) of Schedule 2 to the Regulations. This occupation requires an AQF Certificate III including at least 2 years on-the-job training or an AQF Certificate IV.  The relevant assessing authority is Trades Recognition Australia (TRA).

16. In a submission received prior to the hearing, Mr Siriwardana’s representative confirmed that Mr Siriwardana holds a Certificate in International Cookery from the Sri Lankan Vocational Education Centre’s Hotel School 15 March 1988 and a national vocational qualification Certificate as Cook certified by the Sri Lankan National Apprentice and Industrial Training Authority on 16 May 2013.  After working in restaurants in the 1980s and 1990s, Mr Siriwardana undertook studies in Australia between 2005 and 2006.  He returned to Sri Lanka from 2006 to 2013 where he worked as a Senior Chef at the Ministry of Home Affairs and Tourist Board from January 2006 to December 2013.  Copies of Mr Siriwardana’s Certificates from Sri Lanka were provided to the Tribunal. 

17. In addition to his qualifications and experience gained overseas, Mr Siriwardana told the Tribunal that he also completed a Certificate II in Hospitality (Kitchen Operations) at the William Angliss Institute of TAFE in Melbourne.  A copy of his Certificate of Completion dated 14 March 2006 was provided to the Tribunal.  He also started, but did not complete, a Certificate IV in Hospitality (Commercial Cookery).  Since lodgement of his Subclass 187 visa application, Mr Siriwardana has completed a Certificate III in Commercial Cookery as confirmed by the Transcript of Academic Record and Certificate of Completion issued by JCE Positive Outcomes dated 16 February 2017 provided to the Tribunal.  

18. It is not in dispute that, at the time of lodgement of his Subclass 187 visa, Mr Siriwardana did not lodge evidence of a skills assessment from TRA despite the fact that his qualifications were obtained overseas.  When asked why he did not obtain a skill assessment from TRA for his nominated occupation of Cook prior to lodging his Subclass 187 visa in light of the fact that he already held a national qualification in Sri Lanka in the occupation, Mr Siriwardana told the Tribunal he was not advised about this by his former representative.  He added that his former representative ‘did not say anything’ about the need for a qualifications assessment.  Rather, the former representative just focused on lodging the application before he turned 50 years of age on 18 March 2015 (the day after lodgement) and doing an English language test.  Mr Siriwardana said he has no doubt that, had he applied to TRA for a skills assessment, it would have been favourable.

19. The Tribunal accepts that Mr Siriwardana has extensive experience as a Cook. He also now has documentation not only from Sri Lanka but also from Australia to confirm his formal qualifications as a Cook. However, at the time he lodged his application, Mr Siriwardana’s Australian qualification was limited to a Certificate II in Hospitality (Kitchen Operations). Whilst Mr Siriwardana had extensive experience and some qualifications in Sri Lanka he nonetheless had not had his skills assessed by TRA at the time of application for his Subclass 187 visa. In the circumstances, the Tribunal finds that at the time of application Mr Siriwardana did not obtain the necessary qualification in Australia and, accordingly, does not meet the cumulative requirements in cl.187.234(b) of Schedule 2 to the Regulations.

20. Since, at the time of application, Mr Siriwardana did not obtain the necessary qualification in Australia as a Cook, it is cl.187.234(b) of Schedule 2 to the Regulations which is applicable to his situation. It is not open for him to satisfy the requirements in cl.187.234(c) of Schedule 2 to the Regulations.

21. For the reasons given above and having regard to the evidence provided, the Tribunal finds that, at the time of application, Mr Siriwardana does not meet cl.187.234(a), cl.187.234(b) or cl.187.234(c) of Schedule 2 to the Regulations. Therefore, the Tribunal finds that cl.187.234 of Schedule 2 to the Regulations is not met.

22. Mr Siriwardana has only sought to satisfy the criteria for a Subclass 187 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 in relation to Mr Siriwardana.

23. There is no evidence before the Tribunal to indicate that any of the secondary applicants meet the primary requirements for the grant of the visa.

24. Given the above, the Tribunal affirms the decision under review.

    Request for referral to the Minister

25. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so.

26. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

27. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.[1]  The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances (emphasis added).  The circumstances which, according to the Minister’s guidelines, may be unique or exceptional include, relevantly, where:

    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 (emphasis added)

    [1] Available at

28. The representative requested the Tribunal refer Mr Siriwardana’s case to the Minister and has provided a comprehensive submission with supporting documents to the Tribunal regarding Mr Siriwardana’s circumstances and which address the ministerial guidelines.  The Tribunal will forward the submission and accompanying documentation to the Department.

29. At the hearing, Mr Siriwardana demonstrated a genuine and sincere desire to continue contributing to Australia through his employment as a Cook specialising in Sri Lankan cuisine. His representative has collected an impressive array of letters of support praising Mr Siriwardana’s dedication to his work, his excellence as a Cook and his contribution as a highly regarded local community member. The letters come from a number of senior public servants including a member of the ACT Legislative Assembly, the Commission of International Engagement, the Office of Multicultural Affairs as well as officers from the Royal Australian Air Force along with other Canberra residents. The submission also provides evidence regarding the importance of the restaurant industry in Canberra as well as skill shortages in the industry.

30. Mr Sandirigama told the Tribunal that he has been in the hospitality industry for 35 years including time with the Sheraton Hotel in Darling Harbour, Sydney and the Park Royal in Canberra where he was the Food and Beverage Manager.  He said running a restaurant is very difficult in Canberra since, in his experience, hospitality staff prefer to work in Sydney or Melbourne.  Until Mr Siriwardana joined his business 3 years ago, it was not really profitable and it is difficult to find highly qualified staff who want to stay in Canberra.  However, since Mr Siriwardana has been with the business, Banana Leaf has become a multi-award winning restaurant and is ranked 24^th of Canberra’s 1,082 restaurants by TripAdvisor.

31. Apart from his excellence and dedication as a Cook (who has never had a day off sick), Mr Sandirigama told the Tribunal that Mr Siriwardana teaches other staff - including the Australian citizen Chef - about Sri Lankan cuisine.  He added that when the Sri Lankan Prime Minister and President stayed in Canberra at the Hyatt Hotel, Banana Leaf was requested to provide meals not only for the visiting dignitaries but for their supporting staff.  In all, in addition to the 4 full-time Cooks and Chef, there are 3 Kitchen Hands as well as 7 Wait Staff, 1 Restaurant Manager and 1 Restaurant Supervisor.  Only Mr Siriwardana does Sri Lankan cuisine, the other Cooks and the Chef all do Western cookery.  Mr Sandirigama opined that if he should lose Mr Siriwardana the chance of finding a replacement would be negligible.  After the hearing, multiple letters of support were provided from Mr Siriwardana’s colleagues confirming his role a valued and dedicated colleague who acts as a mentor.  

32. Asked about his restaurant Banana Leaf, Mr Sandirigama said it is located in City Walk, Canberra Centre and is proximate to both the Canberra Theatre and the ACT’s Legislative Assembly. He said it is a ‘classy restaurant’: all tables have table cloths with table service provided by a waiter or waitress. He added he does ‘not cut corners’ and even a table napkin costs the business $4 to buy. Banana Leaf is not run as a café: rather, he said, customers are respected and called ‘Sir’ or ‘Madam’.  Diners choose their dish from a comprehensive menu and can also choose from a range of alcoholic beverages offered consistent with the liquor licence.  The most popular drink is wine.  Payment is made after customers have eaten: 97% of revenue comes from dine-in customers.  After the hearing, photographs of the Banana Leaf premises were provided to the Tribunal.

33. Mr Sandirigama told the Tribunal that Banana Leaf is currently the only Sri Lankan restaurant in Canberra which, he said, explains why Canberra’s Hyatt Hotel calls upon the business from time to time to provide services to visiting Sri Lankan dignitaries.  Mr Sandirigama added that, previously, Canberra really only knew about Indian food but now, due to Mr Siriwardana’s presence and expertise, Canberrans have discovered authentic Sri Lankan food.  There have been 6 other Sri Lankan restaurants in Canberra in the past: but, all have gone bankrupt and since closed.  Mr Sandirigama credits the success of his restaurant to Mr Siriwardana who has consistently produced excellent food - it is the consistency over a long-term that has allowed Banana Leaf not only to survive when others have failed but also secure its good rankings.  Mr Sandirigama opined that should Mr Siriwardana be forced to leave Australia he would have to shut the business because he is ‘the key man’.  He added this would adversely impact the 4 staff who have mortgages to pay each month.

34. Apart from now being an award-winning restaurant, Mr Sandirigama told the Tribunal that Banana Leaf has been involved in a number of multicultural events including the 2016 and 2017 Sri Lankan Festivals.  After the hearing, evidence of Mr Siriwardana’s involvement in such events was provided by way of an article from the Diplomatic Press and the Sri Lankan High Commission in Canberra “Sri Lanka Festival 2016 attracted unprecedented crowds in Canberra” together with assorted photographs including 2 videos of Mr Siriwardana in a Sri Lankan cooking demonstration at the Sri Lanka Festival 2017.      

35. Mr Siriwardana’s son, Madushka Siriwardana, told the Tribunal that he is proud to come from a family who pride themselves on their qualifications.  Apart from currently completing a Bachelor of Engineer (Civil) at Swinburne University, his father is a highly qualified Cook, his mother a qualified hairdresser and his sister is studying human nutrition at uni in Canberra.  He said he has spent most of his life growing up here in Australia and sees his future here.  Evidence of Madushka Siriwardana’s current enrolment in a Bachelor of Engineering (Civil) at Swinburne University was provided to the Tribunal after the hearing.

1. Miss Heshani Siriwardana confirmed that she will graduate with a Bachelor of Human Nutrition from the University of Canberra in 2018.  She said she is passionate about making a change to the tendency for Australians to become obese and the problems surrounding diabetes.  Miss Siriwardana provided evidence to the Tribunal after the hearing of her current enrolment in a Bachelor of Human Nutrition at the University of Canberra. 

2. In addition to the comprehensive documentation provided to the Tribunal prior to the hearing in support of the request for referral to the Minister under s.351 of the Act, further documentation was lodged after the hearing. This documentation has been referred to above, where relevant.

3. Having regard to the evidence provided, the Tribunal accepts that Mr Siriwardana’s circumstances are capable of meeting the criteria extracted above for referral to the Minister, namely, there would be exceptional economic and cultural benefit from allowing Mr Siriwardana and his family to remain in Australia and, further, the application of relevant legislation has led to an unfair result in this case. As such, the Tribunal considers that Mr Siriwardana’s situation may involve exceptional circumstances and the Tribunal therefore considers it appropriate to request that this case be brought to the attention of the Minister in order for him to consider whether to exercise his discretionary intervention powers under s.351 of the Act.

   DECISION

4. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

   Katie Malyon

   
   Member

   Annexure – Extract from Part 187 of Schedule 2 of the Migration Regulations 1994

   187.234   At the time of application:

   (a)  the applicant was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph; or

   (b)  all of the following requirements were met:

   (i)  the applicant's occupation is specified by the Minister in an instrument in writing for this subparagraph;

   (ii)  the applicant did not obtain the necessary qualification in Australia;

   (iii)  the applicant's skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph (i) as the assessing authority for the occupation;

   (iv)  the assessment was not for a Subclass 485 (Temporary Graduate) visa;

   (v)  if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment--the period had not ended;

   (vi)  if subparagraph (v) did not apply--not more than 3 years had passed since the date of the assessment; or

   (c)  both:

   (i)  the applicant's occupation was not specified by the Minister in an instrument in writing for subparagraph (b)(i), or the applicant obtained the necessary qualification in Australia; and

   (ii)  the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

   oOOo