Schmitz (Migration)

This matter concerned an appeal by an applicant for a Subclass 186 (Employer Nomination Scheme) visa, Direct Entry stream, against a decision to affirm the refusal of their visa application. The applicant was nominated by the Centenary Institute of Cancer Medicine and Cell Biology to fill a position as a Life Scientist (General). The core dispute revolved around whether the Centenary Institute qualified as an "Australian scientific government agency" for the purposes of an exemption under the migration regulations.

The Tribunal was required to determine whether the applicant met the requirements of clause 186.234 of Schedule 2 to the Migration Regulations 1994. This clause mandates that for applicants in the Direct Entry stream, either the applicant must be in a specified class of exempt persons, or their skills must have been assessed as suitable by a specified authority, and certain employment requirements must be met. The applicant relied on the exemption for persons employed in certain occupations, specifically researchers, scientists, and technical specialists at ANZSCO skill levels one or two, who applied for a visa to occupy a position nominated by an Australian scientific government agency.

The Tribunal reasoned that while the Centenary Institute described itself as independent, its administration was governed by the Centenary Institute of Cancer Medicine and Cell Biology Act 1985 (NSW). This Act stipulated the responsible Minister, the appointment of its Board by the Governor, and the inclusion of members nominated by various government and academic bodies. The Tribunal concluded that, despite its operational independence, the Institute's statutory basis and accountability to a Minister meant it constituted a government agency. Consequently, the Tribunal found that the applicant was nominated by an Australian scientific government agency and therefore met the criteria for an exempt person under the relevant instrument.

The Tribunal remitted the application for reconsideration, directing that the applicant met the criteria under clause 186.234 of Schedule 2 to the Regulations.