Ward (Migration)

This matter concerned an application for Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream. The applicants sought review of a decision that affirmed the refusal of their visa applications. The primary applicant, who was over 50 years of age at the time of application, did not fall within any of the classes of persons exempt from the age requirement as specified in legislative instrument IMMI 15/083.

The central legal issue before the Tribunal was whether the primary applicant met the age requirement stipulated by clause 186.221 of the Migration Regulations 1994. This clause requires an applicant in the Temporary Residence Transition stream to either be under 50 years of age or belong to a specified exempt class. The Tribunal was required to determine if the applicant's age of 73 at the time of application disqualified them, and if so, whether they qualified for any of the exemptions outlined in IMMI 15/083, which included specific categories of researchers, scientists, technical specialists, senior academics, and medical practitioners under certain conditions.

The Tribunal reasoned that the primary applicant, born in January 1943, was 73 years old when applying for the visa on 16 August 2016, thus failing to meet the age requirement under clause 186.221(a). The Tribunal then examined the exemptions provided in IMMI 15/083, finding that the applicant's nominated position as a Customer Service Manager did not align with the criteria for researchers, scientists, technical specialists, senior academics, or medical practitioners. Consequently, the applicant did not satisfy the conditions for exemption. The Tribunal noted that while unique circumstances, such as the unstable security situation in South Africa and the best interests of grandchildren, were raised in a request for ministerial intervention, these were not grounds for the Tribunal to grant the visa under the applicable regulations.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas. It also advised the applicants that it remained open to them to make a direct request for Ministerial Intervention.