Siriwardana (Migration)

The Administrative Appeals Tribunal considered the case of Mr Siriwardana, who sought a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the Direct Entry stream. The dispute centred on whether Mr Siriwardana met the requisite skills and qualifications for the occupation of Cook at the time of his visa application.

The primary legal issue before the Tribunal was to determine whether Mr Siriwardana satisfied the criteria set out in cl.187.234 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether he was an exempt person, or alternatively, whether his skills had been assessed by a specified authority for his nominated occupation, or if he possessed the qualifications listed in ANZSCO for a Cook. The Tribunal also considered whether exceptional circumstances warranted a referral to the Minister for discretionary intervention.

The Tribunal reasoned that Mr Siriwardana did not qualify as an exempt person under the relevant instruments, as his nominated occupation was Cook and he did not meet the income thresholds or hold specific visas for exempt categories. Crucially, the Tribunal found that Mr Siriwardana had not obtained a skills assessment from the required assessing authority for his occupation, nor did he possess the qualifications listed in ANZSCO. Despite affirming the decision not to grant the visa, the Tribunal found that Mr Siriwardana's circumstances presented exceptional economic and cultural benefits to Australia and that the application of the legislation had resulted in an unfair outcome.

Consequently, the Tribunal affirmed the decision to refuse the visa but decided to refer the matter to the Department for consideration by the Minister under s.351 of the Migration Act 1958, to allow the Minister to consider exercising his discretionary intervention powers.