Chaikijkosi (Migration)

[2020] AATA 302

Chaikijkosi (Migration) [2020] AATA 302 (6 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Duang-Ek Chaikijkosi
Ms Thanyarat SINLAPASORN

CASE NUMBER:  1718787

HOME AFFAIRS REFERENCE(S):          BCC2017/1765036

MEMBER:Amanda Mendes Da Costa

DATE:6 February 2020

PLACE OF DECISION:  Melbourne

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

·cl.186.223 of Schedule 2 to the Regulations.

The Tribunal considers that the second named applicant’s visa application should be reconsidered in light of its findings regarding the first named applicant.

Statement made on 06 February 2020 at 9:16am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – subject of an approved nomination – nomination now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.223

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 and Border Protection on 16 August 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 May 2017. 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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa to work in the nominated position of Café or Restaurant Manager.

5. The delegate refused to grant the visas on 16 August 2017because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

6. The applicants appeared before the Tribunal on 2 August 2019 to give evidence and present arguments. The hearing was heard as a combined hearing with that of the sponsor, Haoyu Pty Ltd.  Ms Weina Wang, a director of the company also gave evidence in the matter.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

8. The applicants were represented in relation to the review by their registered migration agent.

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 applicant is the subject of an approved nomination.

    Nomination of a position

11. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination for an Employer Nomination Scheme (Subclass 186) visa in the Temporary Residence Transition stream that identifies the visa applicant. 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.

12. 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.

13. On 5 February 2020 the Tribunal set aside the decision of the Department to refuse the nomination application for the occupation of Café or Restaurant Manager lodged by Haoyu Pty Ltd in respect of the applicant, and substituted a decision that the nomination is approved.

14. Therefore, at the time of this decision, there is an approved nomination in respect of the applicant and for this reason the requirements of cl.186.223 are met.

15. The Tribunal considers that the second named applicant’s visa application should be reconsidered in light of its findings regarding the first named applicant.

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

    DECISION

    ·The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa: cl.186.223 of Schedule 2 to the Regulations.

17. The Tribunal considers that the second named applicant’s visa application should be reconsidered in light of its findings regarding the first named applicant.

    Amanda Mendes Da Costa
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.