1607039 (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, specifically a Subclass 186 visa. The primary dispute concerned whether the applicant met the requirements of clause 186.234, which pertains to skills assessment and prior employment for applicants in the Direct Entry stream. The applicant had provided a skills assessment dated after the visa application date and evidence of full-time employment, but crucially, lacked a suitable skills assessment from the relevant authority at the time of application.

The Tribunal was required to determine if the applicant satisfied clause 186.234, which mandates either being an exempt person or having a suitable skills assessment and meeting specific employment criteria. The clause outlines conditions regarding the timing and validity of skills assessments and the nature and duration of employment for visa applications made on or after certain dates. The Tribunal also considered whether the applicant fell within any of the specified classes of "exempt persons" as defined in IMMI 12/060, which include individuals employed in certain occupations nominated by religious institutions or government agencies, academics nominated by universities, or those whose nominated earnings meet a specific threshold, or holders of specific visas who have been working with their nominating employer.

The Tribunal reasoned that the applicant did not meet the primary criteria of clause 186.234 because, at the time of application, he did not possess a valid skills assessment from the relevant authority. While the applicant later obtained a successful skills assessment and provided evidence of employment, these were not sufficient to overcome the requirement that the assessment be valid at the application date. The Tribunal found that the applicant did not fall into any of the categories of "exempt persons" as outlined in IMMI 12/060. Consequently, the Tribunal concluded that the applicant did not satisfy the primary criteria for the Subclass 186 visa.

As the primary applicant did not satisfy the criteria for the visa, the Tribunal also found that the secondary applicant, who was a member of the family unit, could not satisfy clause 186.311, which requires the primary applicant to have met the primary criteria. Therefore, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.