respondent. The Tribunal affirmed the delegate's decision to refuse the Employer Nomination (Permanent) (Class EN) visas because the primary applicant did not meet the age requirement in clause 186.231 and...
Key principles
An applicant for a Subclass 186 (Direct Entry) visa who is aged 50 or over at the time of lodgement must fall within an age-exempt class specified in the legislative instrument...
Family unit members dependent on the primary applicant cannot satisfy the primary criteria by their own facts; if the primary applicant fails clause 186.231 then dependent...
Issues before the court
Whether the primary applicant, aged 50 at lodgement, is an "exempt person" for the purposes of the age requirement in clause 186.231(b) because she...
Whether the dependent members of the family unit satisfy the secondary criteria for the Subclass 186 visa given the primary applicant's failure to...
Cited legislation
No linked legislation citations have been extracted yet.
Plain English Summary
The primary applicant applied for an Employer Nomination Subclass 186 visa in the Direct Entry stream but was aged 50 when she lodged the application. The Migration Regulations exempt certain narrowly defined classes of older applicants (as set out in IMMI 15/083), but the Tribunal found she did not fall into any of those classes. Because she did not meet the statutory age exemption, the visa could not be granted and the Tribunal affirmed the delegate's refusal; the dependent family members were also ineligible because the primary applicant failed to meet the primary criteria.
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Deep Dive
1,689 words · generated 23/06/2026
What happened
The applicants sought Administrative Appeals Tribunal review of a delegate's decision refusing Employer Nomination (Permanent) (Class EN) visas, specifically Subclass 186 in the Direct Entry stream. The primary applicant, Dr Carol Janson Bond, lodged the visa application on 17 December 2015. At lodgement she was aged 50. The delegate refused the application on 31 August 2016 on the statutory ground that she did not satisfy the age requirement in clause 186.231 of Schedule 2 to the Migration Regulations 1994 and was not within a class of persons exempted from that requirement by the legislative instrument IMMI 15/083 ([Statement of Decision 1], [5]). The family unit applied for review; hearings occurred on 13 December 2017 and 22 January 2018 and the Tribunal (Member Ian Berry) affirmed the delegate's refusal on 28 March 2018 ([Statement of Decision 6]; Decision).
The crux of the dispute was statutory eligibility under the Direct Entry stream: either the applicant met the age limit or was an "exempt person" within IMMI 15/083 (classes 5 and 7). The Tribunal evaluated the applicant's nominated occupation (public relations manager), her actual duties (the Tribunal observed her role resembled a researcher and lecturer in parts), and compared those facts with the narrow classes set out in IMMI 15/083. It concluded she did not meet those classes and therefore failed clause 186.231; as a result the dependent applicants could not succeed under clause 186.311(a) and the Tribunal affirmed the refusal ([Consideration 1–6], [8–9]).
Why the court decided this way
Statutory framework
Subclass 186 (Direct Entry) eligibility is governed by Schedule 2, Part 186 of the Migration Regulations 1994. The Direct Entry stream requires one applicant to satisfy the primary criteria, including the Common criteria and stream-specific requirements ([Statement of Decision 3]).
Clause 186.231 sets age requirements for applicants in the Direct Entry stream; clause 186.231(b) provides that applicants over the prescribed age are eligible only if they belong to classes of persons specified in a separate legislative instrument, IMMI 15/083 (the age-exemption instrument) ([Consideration 1]).
Applied reasoning
The Tribunal framed the central question: was the primary applicant an "exempt person" for the age condition because she fell within classes 5 or 7 of IMMI 15/083? That is the legal gateway to eligibility for those aged 50 at lodgement ([Consideration 1]).
The Tribunal compared the statutory categories in IMMI 15/083 with the applicant's circumstances. Classes 5 and 7 are narrowly expressed and include researchers, scientists and technical specialists nominated by Australian scientific government agencies; university lecturers and faculty heads; certain New Zealand nationals and their family members who have worked in the nominated occupation for their nominating employer for at least two years; and certain medical practitioners in regional Australia ([Consideration 2]).
The Tribunal found the applicant’s nomination as a public relations manager did not fit the statutory categories. Although the Tribunal noted the applicant’s work resembled research and lecturing, that resemblance did not satisfy the specified relationships and nomination requirements in IMMI 15/083 (for example, nomination by an Australian scientific government agency, or qualifying New Zealand national status) ([Consideration 3–5]).
The Tribunal also treated as irrelevant prior public relations employment that was not with the nominator and not contemporaneous with the nomination ([Consideration 4]).
Concluding that the applicant did not fall within classes 5 or 7, the Tribunal held clause 186.231(b) had not been met; consequently the visa could not be granted ([Consideration 6]).
Because the family applied as a combined application relying on the primary applicant to satisfy the primary criteria, the dependants could not meet clause 186.311(a) once the primary applicant failed clause 186.231; the Tribunal found the dependent applicants did not satisfy clause 186.311 ([Consideration 8–9]).
The decision therefore rests on straightforward statutory application: the regulations set a strict age rule and a narrow exemption; the applicant did not satisfy the narrow exemption, so the legislative condition was not met and the visa could not be granted.
Before and after state of the law
Before
The statutory scheme in Part 186 of Schedule 2 and the legislative instrument IMMI 15/083 were already in place at lodgement. The Tribunal applied those instruments as they stood. This decision does not announce a new legal principle; it applies the existing provisions to the facts.
After
The decision confirms that the Tribunal will apply IMMI 15/083 strictly. An applicant over the age limit must demonstrably fall within the precise categories set out in IMMI 15/083 (classes 5 and 7) to escape the age bar. Evidence of similar or overlapping duties (for example work that resembles research or lecturing) is insufficient unless the formal nomination and relationship criteria specified in the instrument are met.
Practitioners should note the decision as an example of the Tribunal declining to broaden IMMI 15/083 by reference to functional similarity of duties or past unrelated employment; the statutory categories govern.
Key passages with plain-English translation
"The delegate refused to grant the visas because the applicant did not meet cl.186.231(a) ... had turned 50 years ... and did not otherwise come within the specification of class of persons exempt from the age criteria as set out in IMMI 15/083." ([Statement of Decision 5])
Plain English: The delegate refused because the applicant was 50 at the time of application and did not belong to any of the special groups that are allowed to be over that age.
"The question to be determined is whether the review applicant was a person who was exempt from the age restriction of 50 years as set out in clause 186.231(b). Persons exempt from the age restriction must come within classes 5 and 7 of IMMI 15/083." ([Consideration 1])
Plain English: The Tribunal's job was to check if the applicant fell within the exact types of people listed in the specific instrument that lets some older applicants qualify.
"With that occupational background including her present occupation, she was not exempt by falling within the classes 5 and 7 of IMMI 15/083." ([Consideration 5])
Plain English: Even looking at all her jobs, she did not match the exact categories in the exemption rules, so she could not claim the age exemption.
"Therefore, cl.186.231(b) has not been met." ([Consideration 6])
Plain English: The statutory age-exemption requirement was not satisfied.
"The Tribunal finds that the visa applicants have not satisfied clause 186.311." ([Decision paragraph 1 / Consideration 9])
Plain English: Since the main applicant failed to meet the required conditions, the family members also do not qualify.
What fact patterns trigger this precedent
This decision is triggered whenever:
A primary applicant lodges a Subclass 186 Direct Entry application while aged 50 or over, and attempts to rely upon IMMI 15/083 for an age exemption.
The applicant’s nominated occupation and work history might be arguable as functionally similar to categories in IMMI 15/083 (for example research or lecturing) but does not involve the specific nomination relationship or nationality/tenure criteria set out in the instrument.
A combined family application depends on the primary applicant meeting primary criteria; if the primary fails the age exemption, dependants will also fail unless they satisfy independent primary criteria (which in this case they did not).
Practitioners should identify and evidence the precise statutory prerequisites in IMMI 15/083: the nominators, the employing relationship, the nationality conditions, or the regional medical practitioner conditions, rather than relying on functional similarity of duties.
How later courts have treated it
The judgment is a Tribunal decision (AAT). It applies statutory provisions and a legislative instrument. The decision is not a higher court precedent and does not purport to change law. The Tribunal's approach is to apply the instruments literally and narrowly. Any later appellate treatment would depend on whether a higher court has considered the construction of IMMI 15/083 or clause 186.231; this decision itself does not report such appellate treatment. In practice, tribunals and decision-makers will follow this style of statutory application: check whether the applicant meets the precise wording and relationships required by the exemption instrument. Practitioners should consult subsequent decisions and any appellate rulings for departures from this approach.
Still-open questions
Functional equivalence versus formal nomination: The Tribunal rejected reliance on functional similarity of duties where the applicant did not occupy the precise statutory relationships. It remains open whether a future appellate court would recognise a broader construction of IMMI 15/083 where the applicant's role is demonstrably the same in substance and impact as the listed categories, but with differing formal nomination structures. This decision indicates the AAT will not broaden the instrument's categories by implication ([Consideration 3–5]).
Evidence required to prove qualification under IMMI 15/083: The decision underscores the need for documentary proof of the specific relationships (for example nomination by certain Australian scientific government agencies, or proof of qualifying New Zealand national employment history). The judgment does not set out an exhaustive evidentiary checklist; practitioners must ensure robust documentary proof when asserting an exemption.
Interaction with other visa streams: The applicants made no claim under other 186 streams (Temporary Residence Transition or Agreement streams) and the Tribunal observed as much ([Consideration 7]). Where older applicants might be eligible under alternative streams, future cases may raise whether tribunals must consider alternative eligibility pathways in assessing a combined application.
Dependants' independent claims: Here dependants relied on the primary applicant. Where dependants have distinct grounds to satisfy primary criteria, the Tribunal's conclusion does not preclude their independent success. The boundaries between contingent and independent claims warrant careful pleading and evidence.
Legislative change: The decision is tied to the instruments as they stood at lodgement. If IMMI 15/083 or the Regulations are amended, the legal landscape changes. Practitioners must monitor legislative and instrument changes and any administrative policy variations.
Conclusion
This AAT decision applies the Migration Regulations and IMMI 15/083 strictly, confirming that age exemptions are narrow and depend on the exact statutory categories. It is a reminder to migration advisers and litigators to align evidence with the statutory text and to consider alternative visa pathways where age bars apply.
DECISION: The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
[4]
Migration - Employer Nomination (Permanent) visa - Subclass 186 (Employer Nomination Scheme) - Direct Entry stream - Applicant does not satisfy age requirement - Whether the applicant is exempt from the age requirement - Applicant is not an "exempt person" - Decision affirmed
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 August 2016 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 17 December 2015. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in the direct entry stream, to work in the nominated position of "public relations manager". This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.
The delegate refused to grant the visas because the applicant did not meet cl.186.231(a) of Schedule 2 to the Regulations because the applicant had turned 50 years at the time of the lodgement of her application and did not otherwise come within the specification of class of persons exempt from the age criteria as set out in IMMI 15/083.
[8]
The issue in the present case is whether the review applicant was a person who was exempt from the age restriction of 50 years as set out in clause 186.231(b). Persons exempt from the age restriction must come within classes 5 and 7 of IMMI 15/083.
[9]
At the time the visa application is made, an applicant in the direct entry stream must either meet certain age requirements, or must be in a class of persons specified in legislative instrument IMMI 15/083: cl.186.231(b). In this case, at the time of her making her application on 17 December 2015 the applicant had turned 50.
The question to be determined is whether the review applicant is exempt from the age restriction. Classes 5 and 7 in IMMI 15/083 specifies the age exempt persons as being researchers, scientists and technical specialists nominated by the Australian scientific government agencies; university lecturers and faculty heads; New Zealand nationals or their family members who have been working in the nominated occupation for their nominating employer for at least 2 years; or, certain medical practitioners working in regional Australia.
The applicant had applied in the 186 visa application as a "public relations manager". Leaving the age restriction to one side, it appears she was not performing that role. Her role was more in line with that of a researcher and a lecturer.
She did undertake a role, at least in part, as a public relations manager but strictly not with her nominator but with an organisation incidental to the activities of the nominator. It was at a previous period and not with the nominator and therefore irrelevant.
With that occupational background including her present occupation, she was not exempt by falling within the classes 5 and 7 of IMMI 15/083. The applicant was neither a researcher occupying a position within an organisation as nominated by Australian scientific government agencies, nor a New Zealand national, nor a medical practitioner working in regional Australia.
Therefore, cl.186.231(b) has not been met.
The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the direct entry stream. No claims have been made in respect of the other visa stream. As the requirements that must be met by a person seeking the visa in the direct entry stream have not been met, the decision under review must be affirmed.
The review applicant and the dependent applicants had made a combined application. The visa applicants had not made any claim toward satisfying this class of visa other than as claimed members of the family unit for the purposes of this application. The review applicant was unable to meet clause 186.231 and therefore the visa applicants were unable to meet criteria set out in clause 186.311(a) of Schedule 2.
[10]
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
AI Analysis
Outcomerespondent
Disposition:
The Tribunal affirmed the delegate's decision to refuse the Employer Nomination (Permanent) (Class EN) visas because the primary applicant did not meet the age requirement in clause 186.231 and was not within the exemption classes specified in IMMI 15/083; consequently the dependent applicants could not satisfy clause 186.311(a).
The applicants appeared before the Tribunal on 13 December 2017 and 22 January 2018 to give evidence and present arguments. The Tribunal received evidence from the applicant and the visa applicant Mr Gilbert Bond.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal finds that the visa applicants have not satisfied clause 186.311.