Binti Abu Bakar (Migration)

This matter concerned an appeal by Binti Abu Bakar against the decision not to grant her an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) direct entry stream. The core of the dispute revolved around the applicant's eligibility for the visa, particularly concerning the age requirement stipulated in the regulations.

The legal issue before the Tribunal was whether the applicant satisfied clause 186.231 of Schedule 2 to the Regulations, which requires applicants in the direct entry stream to meet certain age criteria or fall within a specified class of persons. The applicant argued that she would have met the criteria if not for a system error that prevented her from lodging her application online before her 45th birthday. The Tribunal was required to determine if it had the power to grant the visa despite the applicant not meeting the primary criteria at the time of application, or if the circumstances warranted a referral for ministerial discretion.

The Tribunal found that it was bound by the legislation and regulations in force at the time of the application and did not have the power to extend its authority beyond applying these to the presented facts. It noted that the applicant turned 45 on 8 May 2019, and the visa application was lodged on that date. While the applicant's agent claimed attempts to lodge prior to the birthday were thwarted by system errors, departmental records indicated the application was successfully lodged and payment received on 8 May 2019. The Tribunal was not persuaded that it could prescribe a different time limit or make a favourable decision based on the system error alone, as the applicant did not fall within any exempt class of persons.

Despite affirming the decision not to grant the visa, the Tribunal considered the compassionate and compelling circumstances presented. These included the circumstances leading to the late lodgement, the applicant's value to her sponsoring employer, family matters, and the compelling need for medical practitioners due to the COVID-19 pandemic. Accordingly, the Tribunal referred the matter to the Minister for consideration of exercising personal discretion under section 351 of the Act to substitute a more favourable decision.