HAIDAR (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Subclass 186) visa under the direct entry scheme. The primary applicant was nominated for the position of Research and Development Manager by an Australian University. The dispute centred on whether the applicant met the specific criteria for this visa subclass, particularly concerning skills assessment and prior employment experience.

The Tribunal was required to determine if the applicant satisfied the requirements of clause 186.234 of the Migration Regulations. This clause mandates that for the direct entry stream, an applicant must either be an exempt person or have a suitable skills assessment from the relevant authority, coupled with specific prior employment experience. The nominated occupation of Research and Development Manager required a skills assessment from Vetassess. The Tribunal also had to consider the validity period of the skills assessment and the duration and nature of the applicant's employment in the nominated occupation, as well as the relevant instruments defining exempt persons in force at the time of application.

The Tribunal reasoned that clause 186.234 imposes requirements that must be met at the time of application. It examined the instruments defining exempt persons, IMMI 15/083, IMMI 15/109, and the later IMMI 17/058, concluding that the applicant did not fall within any of the specified classes of exempt persons under any of these instruments. Furthermore, the Tribunal found that the applicant did not possess a suitable skills assessment from Vetassess that met the specified criteria, nor had they met the required three years of full-time employment at the appropriate skill level in the nominated occupation. Consequently, the Tribunal determined that the primary applicant did not meet the criteria for the visa.

As the secondary applicants applied as members of the primary applicant's family unit, and the primary applicant failed to meet the visa requirements, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to any of the applicants.