Lee (Migration)

This matter concerned an application for review of a delegate's decision to refuse Regional Employer Nomination (Permanent) (Class RN) visas, subclass 187, to Mr Walter Lee, Mrs Cherry Lee, Ms Aldrich Rahman Lee, Ms Alethea Ysabel Lee, and Mr Walter Jr Lee. The applicants sought to satisfy the primary criteria under the Temporary Residence Transition stream, with the nominated position being Pig Farmer. The delegate's refusal was based on the primary applicant exceeding the prescribed age limit at the time of application and not meeting any relevant exemptions.

The Tribunal was required to determine whether the primary applicant met the age requirement of being under 45 years of age at the time of application, or if he qualified for any of the exemptions provided for in IMMI 18/045. The Tribunal also considered the consequence of the primary applicant failing to meet the criteria on the eligibility of the secondary applicants, who sought to satisfy the secondary criteria for the visa.

The Tribunal found that the primary applicant was 53 years of age at the time of application, thus failing to meet the age requirement under clause 187.221(a) of Schedule 2 to the Migration Regulations 1994. It was conceded on behalf of the applicant that he did not meet any of the exemptions outlined in IMMI 18/045, including those relating to high income or holding a subclass 457 visa on a specific date. Consequently, the primary applicant did not satisfy the primary criteria for the visa. As the secondary applicants' eligibility depended on the primary applicant being granted the visa, their applications were also refused.

Despite affirming the delegate's decision to refuse the visas, the Tribunal referred the matter to the Department for consideration of a request for Ministerial intervention under section 351 of the Migration Act 1958. This referral was based on supporting documentation provided by the applicant's employer and representative, highlighting the applicant's importance to the local economy and community, and noting that age requirements had changed shortly before the application was made. The Tribunal expressed no view on the appropriateness of intervention, as this is a matter for the Minister.