1508229 (Migration)

[2016] AATA 4122

1508229 (Migration) [2016] AATA 4122 (18 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Qiuyan Chen

CASE NUMBER:  1508229

DIBP REFERENCE(S):  BCC2015/29795

MEMBER:Alison Mercer

DATE:18 July 2016

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 18 July 2016 at 4:02pm

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 12 June 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 5 January 2015. 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, which required her to be the subject of an approved nomination by her proposed employer. The delegate found that the applicant could not meet this requirement as the nomination application made in relation to her by her proposed employer, Australian International Tianlutang Pty Ltd, was refused by the Department on 5 May 2015.

6. The Tribunal received a review application from the applicant on 17 June 2015, together with an authority by which the applicant appointed a registered migration agent, Mr Yan Rong Ye, to be her representative and authorised recipient for correspondence for the purposes of the review.  The agent provided a submission attaching correspondence dated 22 February 2016 from the Department to Australian International Tianlutang Pty Ltd, advising that the company’s nomination of the applicant for the position of Café or Restaurant Manager made on 28 August 2015 had been approved.

7. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is the subject of an approved nomination which is in force.

   Nomination of a position

10. 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.

11. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·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.

12. The Tribunal notes that the applicant’s employer, Australian International Tianlutang Pty Ltd, originally lodged a nomination application for the applicant for the position of Café or Restaurant Manager with the Department on 5 January 2015 and this was refused by the Department on 5 May 2015. However, the material before the Tribunal indicates that the same employer subsequently lodged a new nomination application for the applicant for the same position on 28 August 2015, and that this was approved by the Department on 22 February 2016.

13. The Tribunal considers that cl.186.223 may be met by a new approved nomination, where that nomination is for the same position with the same employer.  This is because cl.186.223 requires the position to be the same as the position identified in the declaration included in the visa applicant, in the Tribunal’s view, there is no express requirement that the nomination relied upon be the same.

14. Accordingly, having regard to the approved nomination dated 22 February 2016 by Australian International Tianlutang Pty Ltd for the applicant for the position of Café or Restaurant Manager, the Tribunal is satisfied that:

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

    ·having checked the Department’s records, including its Integrated Client Services Environment (ICSE) electronic records, there is no adverse information about the nominator or any associated person;

    ·the position is still available to the applicant; and

    ·the visa application was made no more than 6 months after the nomination was approved.

15. Therefore, the Tribunal finds that cl.186.223 is met.

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

    DECISION

17. 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.

    Alison Mercer
    Member