BOONMETAVESUB (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically a Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The applicant sought review of a decision not to grant her this visa. The central dispute revolved around whether the applicant met the age requirements stipulated for this visa subclass.

The Tribunal was required to determine if the applicant satisfied the age criteria for a Subclass 186 visa in the Temporary Residence Transition stream. Specifically, the court had to ascertain whether the applicant, who was 56 years old at the time of her application, met the requirement of not having turned 50 at the time of application, or if she fell within a specified class of persons exempted from this age limit as defined by legislative instrument IMMI 17/058.

The Tribunal reasoned that the applicant did not meet the primary age requirement of being under 50 at the time of application. Furthermore, the Tribunal found that the applicant did not belong to any of the exempted classes of persons outlined in IMMI 17/058, which included researchers, scientists, technical specialists nominated by government agencies, academics nominated by universities, or medical practitioners employed in regional Australia. The applicant's income, as evidenced by PAYG payment summaries, was significantly below the Fair Work High Income Threshold, precluding her from another potential exemption. Despite the employer's submission that the applicant was an asset to the business and the applicant's request not to be judged by her age, the Tribunal concluded that it had no power to waive the statutory age requirement.

Consequently, as the applicant failed to satisfy the mandatory age criteria for the Subclass 186 visa in the Temporary Residence Transition stream, the Tribunal affirmed the decision not to grant the visa.