1607307 (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 187 visa in the Temporary Residence Transition stream. The applicant, who was 58 years old at the time of application, sought to rely on an exemption to the age requirement of not having turned 50. The dispute centred on whether the applicant's earnings met the threshold specified in legislative instrument IMMI 15/083, which outlines classes of persons exempt from the age requirement. The Tribunal was required to determine if the applicant qualified as a UC-457 visa holder who had been working for their nominating employer for at least four years immediately prior to applying, with annual earnings at or above the Fair Work High Income Threshold (FWHIT) for each of those years.

The Tribunal considered the definition of "earnings" for the purposes of the FWHIT, which includes wages and the agreed money value of non-monetary benefits, but excludes payments the amount of which cannot be determined in advance, reimbursements, and contingent payments such as overtime, commissions, and bonuses. The applicant claimed to have been employed by his sponsor for the last four years with a salary equivalent to the FWHIT. However, the Tribunal found that the applicant's earnings did not meet the specified threshold. Consequently, the applicant did not satisfy the primary criteria for the Subclass 187 visa in the Temporary Residence Transition stream.

As the applicant failed to meet the primary criteria for the visa, the Tribunal also found that the secondary applicants, who were included in his application as family members, did not satisfy the criteria for a Subclass 187 visa, as they must be a member of the family unit of a person who has satisfied the primary criteria. The applicant had also requested a referral to the Minister for consideration under section 351 of the Migration Act 1958 (Cth) for ministerial intervention. While the Tribunal acknowledged submissions regarding the applicant's skills, his contribution to training, and the potential hardship to his family and employer if the visa were denied, the decision under review was affirmed because the applicant did not meet the legislative requirements for the visa.