CHEN (Migration)

[2019] AATA 697

CHEN (Migration) [2019] AATA 697 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr DONG CHEN
Mrs LIBO ZHANG
Miss HUIXIN CHEN
Miss PEIQI CHEN

CASE NUMBER [1]:  1615970

CASE NUMBER [2]:  1729517

HOME AFFAIRS REFERENCE [1]:          BCC2015/3986782

HOME AFFAIRS REFERENCE [2]:          BCC2016/2819102

MEMBER:Mr S Norman

DATE:7 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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(3) of Schedule 2 to the Regulations.

Statement made on 07 March 2019 at 4:05pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – subject of an approved nomination – nomination application now approved by 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. The Tribunal has decided to prepare joint reasons for these two cases, given inter alia the nominators, the nominees (and related visa subclass), and the nominated occupations were materially identical.

2. Regarding Case [1], this is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 12 September 2016 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

3. The applicants applied for the visas on 21 December 2015. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). 

4. Regarding Case [2], this is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 November 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

5. The applicants applied for the visas on 25 August 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

6. 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.

7. In the present cases, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Chief Executive or Managing Director (ANZSCO: 111111).

8. The delegates refused to grant the visas because the applicant did not meet cl.186.233(3) – the nomination application/s was not approved.  

9. The applicants appeared before the Tribunal on 12 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Shuqan LIU (the Chairman of the nominator’s business), David Parker (Managing Partner and Director for Geddes Parker & Partners) and Sean Townsend (the former owner of the sponsor’s business between 1997/98 & 2015, and the current Sales Manager[1]). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   [1] Tribunal – folio 106.

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

11. For the following reasons, the Tribunal has concluded that the matters should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets cl.186.233(3).

    Nomination of a position

13. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

14. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·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.

15. In their decisions, the delegates noted the related nomination approval applications had been refused by the Department. By Department letter, the applicant was advised of this and given 28 days to comment. At the date of the delegates’ decisions, no response had been received. As cl.186.233(3) had not been met, the delegates were not satisfied the applicant met cl.186.233. The delegates then refused the visa application under the Direct Entry Stream.

16. Next, the delegates also assessed the visa application under alternative streams. After discussing and then finding that clauses 186.223, 186.233, 186.242 and 186.311 were not met, the delegates refused the application for a Employer Nomination Scheme (subclass 186) visa.

17. The Tribunal notes the nomination approval application/s related to these cases, have been approved on 7 March 2019 (by Tribunal decisions - AAT # 1611852 & 1723222). Therefore, the Tribunal is satisfied the applicant has satisfied cl.186.233(3). Therefore, cl.186.233(3) is met.

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 applications 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(3) of Schedule 2 to the Regulations.

    Mr S Norman
    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.