De Reuck (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream. The applicant had been nominated for the position of Café or Restaurant Manager by The Press Café and had only worked in this nominated position for the ten years prior to his application. The applicant's visa application was made on 8 January 2018, and he declared a date of birth of 1 February 1967, which was confirmed by his birth certificate and passport.

The primary legal issue before the Tribunal was whether the applicant met the age requirements for the visa at the time of his application. Specifically, the Tribunal had to determine if the applicant had not turned 50 at the time of application, or if he fell within a class of persons specified by the Minister as exempt from this age requirement. The applicant's representative argued that a legislative instrument, LIN 22/047, which amended the Migration Regulations, provided a retrospective pathway to permanent residency for "Legacy 457 workers" without an age limit, thereby exempting the applicant from the conventional age restrictions.

The Tribunal found that, based on the applicant's confirmed date of birth, he had indeed turned 50 at the time of his visa application, meaning he did not satisfy the primary age requirement under clause 186.221(a). While the Tribunal acknowledged the applicant's representative's submissions regarding the retrospective operation of LIN 22/047 and the exemption for "Legacy 457 workers," it concluded that this exemption did not apply to the applicant in this instance. The Tribunal affirmed the decision not to grant the visa.