Morada (Migration)

The Administrative Appeals Tribunal considered the case of Morada, an applicant for a Subclass 186 Employer Nomination Scheme visa under the Temporary Residence Transition stream. The dispute centred on the applicant's eligibility for the visa, specifically concerning the age requirements and whether any exemptions applied. The applicant, born in May 1964, was 54 years old at the time of his application in October 2018, exceeding the general age limit of 45 for this visa stream.

The primary legal issue before the Tribunal was whether the applicant qualified for any of the exemption categories specified in legislative instrument IMMI 18/045, which would permit him to be granted the visa despite being over 45. The Tribunal was required to determine if the applicant's nominated occupation as a Residential Care Officer, and his employment history, fell within the defined classes of persons eligible for an exemption under IMMI 18/045, particularly in relation to the criteria for persons holding a Subclass 457 or Subclass 482 visa and meeting a high income threshold.

The Tribunal reasoned that the applicant did not meet the criteria for the specified exemption categories. It found that the applicant's nominated occupation as a Residential Care Officer did not align with the categories of researcher, scientist, technical specialist, or academic outlined in paragraphs (a) and (b) of IMMI 18/045. Furthermore, while the applicant had been employed by his nominating employer, Sydenham Grace Pty Ltd, the Tribunal concluded that he did not satisfy the conditions in paragraph (c) or (d) of IMMI 18/045, which relate to specific income thresholds and employment conditions for certain visa holders.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa. However, the Tribunal considered it appropriate to refer the matter to the Minister for consideration of the exercise of the Minister's power under section 351 of the Migration Act 1958.