Ostberg (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant's employer, Future Fields Pty Ltd, had lodged a nomination for the applicant. The core dispute revolved around whether the applicant met the specific criteria for this visa subclass.

The Tribunal was required to determine if the applicant satisfied clauses 186.221 and 186.223 of the relevant regulations. Clause 186.221 pertains to age requirements, stipulating that an applicant must not have turned 50 at the time of application for the Temporary Residence Transition stream, unless they fall within a specified class of persons. Clause 186.223 concerns the nomination of a position, requiring that the nomination be approved, not withdrawn, that there be no adverse information known to Immigration, that the position remains available, and that the visa application be made within six months of the nomination's approval.

The Tribunal found that the applicant did not meet the age requirement, being 51 years and eleven months old at the time of application, thus failing clause 186.221. Furthermore, the nomination lodged by Future Fields Pty Ltd was refused by a delegate of the Minister on 9 June 2018, meaning clause 186.223(2) was not met. Consequently, the Tribunal affirmed the decision not to grant the visa. Despite this, the Tribunal noted that both the applicant and his employer had requested Ministerial intervention, providing detailed grounds regarding the applicant's unique expertise in operating advanced robotic dairy systems, his critical role in a significant dairy operation, and the potential jeopardy to local milk supplies and export contracts if he were to leave Australia.

The Tribunal affirmed the decision to refuse the visa but recommended that the case be considered for further Ministerial intervention, acknowledging the exceptional circumstances presented by the applicant and his employer.