Employer Nomination 856 Visa Refusal: Migration Tribunal Reasons

Refused Matter: Employer Nomination Subclass 856 Visa

This decision considered unless exceptional circumstances Apply; applicant has not turned 45, has vocational English; approved appointment; approval of nominated position as approved appointment

The applicant applied for an Employer Nomination (Residence) (Class BW) visa on the basis that he was nominated by his employer for the position of production manager.

The delegate refused to grant the visa because the appointment, in a separate application, was not approved (cl.856.221 of Schedule 2 to the Migration Regulations 1994), the visa applicant was over 45 year old and there were no exceptional circumstances to justify waiving the age requirement (cl.856.213(c)(i)). This is not a matter our firm handled.
The applicant’s nominator successfully sought review of the decision to reject the application for approval of the nominated position under r.5.19(1B) and the merits review authority substituted a decision approving the appointment.

The applicant provided further information on appeal regarding life expectancy, working life expectancy, the lack of availability of his skills and details of his experience.

The applicant nominator gave evidence that the applicant’s skills as a leather garment specialist were unavailable in Australia, that the applicant would contribute significantly to the company, particularly in transferring skills to other staff, and that the applicant’s lack of vocational English was not a hindrance to either skills transfer or communication for other purposes, such as Occupational Health and Safety (OH&S) information.

Held: Decision under review set aside.

On review reference was made to the separate decision approving the appointment of the nominated position, as required by cl.856.213(a). Finding that the appointment had not been withdrawn, was still available to the applicant and that the appointment continued to satisfy the criteria for approval, on review it was accepted that the applicant met cl.856.221.

In the finding that the applicant was over 45 years of age at the time of visa application, considered that exceptional circumstances applied. On review it was acknowledged the Department of Immigration’s policy guidelines that where an applicant has turned 60, exceptional circumstances are generally not to be considered. However, it was found the Regulations required consideration of exceptional circumstances and that exceptional circumstances existed in this case based on evidence that the range and combination of skills required for the position were highly specialised, that few people under 45 years of age would have the same level of expertise as the applicant and that the nominator was unable to find a younger suitably qualified person.

In terms of productive benefit to Australia, it was noted that the applicant had worked in the position and a similar position since 1997 and it was accepted, in the context of increased working life expectancy, that the applicant could continue to contribute to the economy for a number of years. And, whilst the applicant conceded that he did not have vocational English, on review it was found that he was able to transfer skills to other employees without vocational English, that communication generally and on issues such as OH&S were not hampered. Accordingly it was found that the applicant met cl.856.213(c)(i) and (ii).