Chang (Migration)

[2020] AATA 836

Chang (Migration) [2020] AATA 836 (16 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yue Chang
Ms Wennan Ma
Master Jiachi Chang

CASE NUMBER:  1728765

HOME AFFAIRS REFERENCE(S):          BCC2017/2309897

MEMBER:Alan McMurran

DATE:16 March 2020

PLACE OF DECISION:  Sydney

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.186.233 of Schedule 2 to the Regulations; and

·The Tribunal remits the applications by the secondary applicants for Employer Nomination (Permanent) (Class EN) visas for reconsideration.

Statement made on 16 March 2020 at 10:00am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Chief Executive ­– subject of an approved nomination ­­– nomination application now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233

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 2 November 2017, to refuse to grant visas to the applicants.[1]

   [1] Employer Nomination (Permanent) (Class EN) visas, under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 June 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 Schedule 2 to the Migration Regulations 1994 (the Regulations)[2]. The primary criteria must be satisfied by at least one visa applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. The outcome for the secondary applicants, members of Mr Chang’s family, follows the decision in respect of Mr Chang.

   [2] Part 186

4. Mr Chang is seeking to satisfy the primary criteria, and must meet the ‘Common criteria’ as well as the criteria for the Direct Entry stream. Mr Chang is seeking the visa to work in the nominated position of Chief Executive. The Delegate refused to grant the visas because Mr Chang was not the subject of an approved nomination by his employer.

5. Mr Chang appeared before the Tribunal on 20 February 2020 to give evidence and present arguments. The Tribunal received oral evidence from the employer’s company director, and from Mr Chang. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. No issues arose concerning interpretation following the hearing.

6. The applicants were represented in relation to the review by their registered migration agent, Mr Alan Duri, who also made submissions.

7. For the following reasons I have concluded that the matter concerning both Mr Chang and the family members as applicants, should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Nomination of a position

9. The regulation as applicable in this case is set out in full in an attachment to this decision[3].

   [3] Clause 186.233

10. It requires that that the position to which the visa application relates is the subject of an application for approval of a nomination in the Direct Entry stream by the person or entity which proposes to employ Mr Chang. The position nominated of chief executive, must be the one that was the subject of the declaration made as part of the current visa application. The associated employer’s nomination must identify Mr Chang as the visa applicant in relation to the position.

11. In addition, this criterion also requires that:

    ·the person, or in this case the company, who will employ Mr Chang is the company which made the nomination

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

    ·there is no ‘adverse information’ known to Immigration about the company or a related entity or person ‘associated with’ the company (within the meaning of the regulations[4]); or whether it is reasonable to disregard any such information;

    ·the position is still available to Mr Chang, and

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

    [4] r.1.13A and r.1.13B

12. The Tribunal notes and has regard to the information provided by the company as the sponsor or nominator of Mr Chang in the related proceedings[5].

    [5] 1720882

13. On 9 March 2020, I made a decision setting aside a refusal by the Department to approve the company’s nomination, and substituting a decision approving the nomination of Mr Chang for the position of Chief Executive.

14. In reviewing the evidence, I was satisfied the company will employ Mr Chang, and is the entity which made the nomination application.

15. I am satisfied that the nomination is approved and has not been withdrawn. There are no findings of any adverse information known to Immigration, and I find there is no evidence of any adverse information about the company or a related entity, or any associated person.

16. Therefore, I find that the requirements of the regulation are met.

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

    DECISION

18. 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.186.233 of Schedule 2 to the Regulations; and

    ·The Tribunal remits the applications by the secondary applicants for Employer Nomination (Permanent) (Class EN) visas for reconsideration.

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    186.233(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:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)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 person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    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.

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

    (6)     The application for the visa is made not more than 6 months after the Minister approved the nomination.