Vargas (Migration)

This matter concerned an application for review of a decision not to grant Employer Nomination (Permanent) (Class EN) visas, specifically Subclass 186 Employer Nomination Scheme visas. The review applicant was the primary applicant for the visa, with his children listed as secondary applicants. The core dispute revolved around whether the primary applicant met the age requirements for the visa, or if he fell within an applicable exemption.

The Tribunal was required to determine two primary legal issues. Firstly, whether the review applicant was over 50 years of age at the time he lodged his Subclass 186 visa application. Secondly, if he was over 50, whether he qualified for an exemption from this age requirement as specified in clause 186.221(b) of the relevant regulations and legislative instrument IMMI 15/083. The Tribunal also considered the implications for the secondary applicants' applications, which were contingent on the primary applicant satisfying the criteria.

The Tribunal found that the primary applicant was indeed 50 years of age at the time of his application, a fact that was conceded. The Tribunal then systematically examined the various classes of persons exempted from the age requirement under IMMI 15/083. It concluded that the applicant did not fit within Class 5 (researcher, scientist, or technical specialist) or Class 6 (working for the nominating employer on a subclass 457 visa for at least four years with annual earnings at or above the Fair Work High Income Threshold). The applicant also did not meet the criteria for medical practitioners. As the primary applicant failed to satisfy the criteria for the visa, his children, as secondary applicants, could not succeed under clause 186.311. Consequently, the Tribunal affirmed the decision not to grant the visas.