1501183 (Migration)

[2016] AATA 3999

1501183 (Migration) [2016] AATA 3999 (17 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shunhua Cheng
Ms Jianrong Huang
Mr Shuo Cheng

MRT CASE NUMBER:  1501183

DIBP REFERENCE(S):  CLF2010/170079

TRIBUNAL MEMBER:  Alison Mercer

DATE:17 June 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Employer Nomination (Residence) (Class BW) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 857 (Regional Sponsored Migration Scheme) visa:

·cl.857.221 of Schedule 2 to the Regulations.

Statement made on 17 June 2016 at 11:42am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 January 2015 to refuse to grant the applicants Employer Nomination (Residence) (Class BW) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 5 July 2011 on the basis of the first named applicant's (the applicant) proposed employment in the position of Carpenter by Wunda Projects Australia Pty Ltd. The position had been nominated for approval as an approved appointment under r.5.19 of the Migration Regulations 1994 (the Regulations).

3. At the time of application, Class BW contained two subclasses: subclass 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme). As the nominated position for which the visa is sought is the subject of an employer nomination that was made on the basis of meeting the requirements of r.5.19(4) of the Regulations, the relevant subclass in the present case is subclass 857. The criteria for this visa subclass are set out in Part 857 of Schedule 2 to Regulations. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

4. The delegate refused to grant the visas because she found that the first named applicant did not meet cl.857.221 of Schedule 2 to the Regulations. The delegate was not satisfied the proposed appointment of the applicant by his employer was still available to him, as she gave weight to evidence provided by the director of Wunda Projects Australia Pty Ltd that the first named applicant no longer worked there and the business no longer had a position for him.  Even though the director subsequently stated that there was a position available for the first named applicant, the delegate found that the evidence given was contradictory and could not be relied upon. She concluded that the appointment mentioned in cl.857.213(a) was no longer available to the first named applicant and thus he did not meet cl.857.221.  The delegate refused to grant visas to the second and third named visa applicants (the first named applicant’s spouse and child) as she found that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 857 visa and there was no evidence to indicate that they met the primary visa criteria in their own right.

5. The Tribunal received a review application from the applicants on 27 January 2015.  It was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Ms Kathy Liu, to be their representative and authorised recipient for correspondence for the purposes of the review.

6. The matter was constituted to a Tribunal Member on 13 January 2016.  On 16 May 2016, the Tribunal wrote to the applicants pursuant to s.359(2) of the Act to invite them to provide information in writing that demonstrated that the first named applicant met cl.857.221.  A copy of the provision was enclosed for their reference.

7. On 20 May 2016, the Tribunal received by email from the applicants’ agent scanned copies of:

   ·a letter dated 20 May 2016 from Mr Bruno Marveggio, director of Wunda Projects Australia Pty Ltd confirming that the first named applicant’s appointment had not been withdrawn and was still available. He further states that there was a misunderstanding during his last communication with the Department of Immigration, which arose from his workload and the number of people the company employed.  At the time the Department officer called him, he was confused about the situation and was not sure what was happening. Although he had provided a letter to explain the situation, it was not accepted and they had had no choice but to seek review of the refusal decision.  This had been unfortunate and time-consuming.  However, Mr Marveggio states that he wishes to confirm that Wunda Projects Australia Pty Ltd continued to have a full time position as a Carpenter available for the first named applicant in its South Australian office and that role is of a permanent nature for at least 2 years.  Mr Marveggio states that as they originally submitted in a letter to the Department, the first named applicant was an excellent tradesman whose services and skills would be valuable to any employer in our industry.  He further states that the company was and still is extremely keen to retain the services of someone of the first named applicant’s calibre and that he hoped the visa application could be finalised in the near future so the first named applicant could commence employment with the company without any concerns regarding his visa status; and

   ·contract of employment dated 20 May 2016 between Wunda Projects Australia Pty Ltd and the first named applicant for the position of Carpenter.

8. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the first named applicant meets cl.857.221.

    Approval of appointment

11. Clause 857.221 requires that at the time of decision, the appointment in the business of the employer for which the applicant has been nominated, has been approved and not withdrawn. The appointment must continue to satisfy the criteria for approval in r.5.19(4) of the Regulations, and still be available to the applicant.

12. The Department’s records indicate that there Wunda Project Australia Pty Ltd’s nomination of the first named applicant was approved by the Department on 3 June 2011.  Accordingly, the Tribunal is satisfied that cl.857.221(a) is met.

13. Based on the letter dated 20 May 2016 from Mr Bruno Marveggio, the director of Wunda Project Australia Pty Ltd, confirming that the company has a position available for the first named applicant, the Tribunal is satisfied that its nomination has not been withdrawn and that the appointment is still available to the applicant. Accordingly, the Tribunal is satisfied that cl.857.221(b) and (d) are met.

14. There is no evidence before the Tribunal to indicate that the appointment does not continue to satisfy the criteria in r.5.19(4) and thus the Tribunal finds that cl.857.221(c) is met.

15. Therefore, the Tribunal is satisfied that cl.857.221 is met in its entirety.

16. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.  As the second and third named applicants applied on the basis of being members of the family unit of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

17. The Tribunal remits the applications for Employer Nomination (Residence) (Class BW) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 857 (Regional Sponsored Migration Scheme) visa:

    ·cl.857.221 of Schedule 2 to the Regulations.

    Alison Mercer
    Member