1503026 (Migration)

[2015] AATA 3174

1503026 (Migration) [2015] AATA 3174 (24 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KHOA DANG DO

CASE NUMBER:  1503026

DIBP REFERENCE(S):  BCC2014/2134872

MEMBER:Mary-Ann Cooper

DATE:24 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.223 of Schedule 2 to the Regulations.

Statement made on 24 July 2015 at 4:27pm

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 13 February 2015 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 28 August 2014. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the 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. 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.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because there was no approved nomination in respect of him as required by cl.186.223(2).

6. The applicant appeared before the Tribunal on 6 July 2015 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is the subject of an approved nomination. 

   Nomination of a position

9. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination).  For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and the position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

10. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

11. As noted above, the applicant applied on 28 August 2014 for a visa under the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager through a nomination made by an Australian business, D. T. Le, V.I. Le and T.K. Nguyen (the nominating employer).  The delegate’s decision, a copy of which was supplied with this review application, records that this nomination application, made in respect of the applicant’s position, was refused on 12 January 2015. Consequently, the Department refused the applicant's visa application on the basis that, as there was no approved nomination, he did not satisfy cl.186.223. There was no application made for Tribunal review of the nomination decision.

12. At the hearing the applicant provided evidence that his employer had again applied for approval of a nomination in respect of him on 14 January 2015. He said that a decision had yet to be made on the application. The Tribunal asked him if he had inquired with his employer about the progress of the application and he responded that the employer had said there was nothing more he could do.

13. The Tribunal allowed the applicant some further time to follow up the issue with his employer. He later provided the Tribunal with a copy of the Department’s decision of 20 July 2015 in which a further nomination application made in respect of his position was approved under r.5.19(3) of the Regulations. Therefore cl.186.223(2) is met.

14. Based on documents on the Department and Tribunal files, the Tribunal finds that the position to which this visa application relates is the same one that was the subject of the above r.5.19(3) nomination and that the visa applicant was identified as the subclass 457 visa holder in the nomination.  It also finds that it is the same position as was the subject of the declaration made in the visa application. Therefore cl.186.223(1) is also met.

15. The Tribunal further finds, on the basis of the applicant’s oral evidence that he was still working with the nominating employer and the Department’s approval of the nomination on 20 July 2015, that the position has not been withdrawn and is still available to the applicant. It follows that the requirements of  cl.186.223(3) and (4) are also met.

16. As noted above, the Department approved the nomination on 20 July 2015 and consequently it finds that the visa application was made no more than six months after the nomination of the position was approved as required by cl.186.223(5).

17. It follows that the Tribunal is satisfied that the requirements of cl.186.223 are met.

    CONCLUSION

18. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

19. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.223 of Schedule 2 to the Regulations

    Mary-Ann Cooper
    Member