Chen (Migration)

[2020] AATA 4058

Chen (Migration) [2020] AATA 4058 (3 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Li Chen
Mr Xifan Chen
Miss Ruoying Chen

CASE NUMBER:  1824888

HOME AFFAIRS REFERENCE(S):          BCC2017/1776755

MEMBER:Amanda Mendes Da Costa

DATE:3 September 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.186.233 of Schedule 2 to the Regulations.

The Tribunal considers that the applications of the second and third named applicants for Employer Nomination (Permanent) (Class EN) visas should be reconsidered as members of the family unit of a person who has satisfied the primary criteria for the grant of visa.

Statement made on 3 September 2020 at 10.05am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Direct Entry stream – Managing Director –tribunal set aside nomination decision–nomination approved –subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.13, 5.19, 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 Home Affairs (the Minister) on 27 August 2018 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 18 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 in the Direct Entry stream, to work in the nominated position of Managing Director 111111.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

6. 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 s.360(2)(a) of the Act.

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

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 meets the requirements of cl.186.233.

   Nomination of a position

10. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that 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.

11. 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.

12. On 2 September 2020 the Tribunal set aside the decision of a delegate of the Minister[1] to refuse the nomination application for the occupation of Managing Director, lodged by the applicant’s prospective employer Grand City International Pty Ltd in respect of the applicant and substituted its decision to approve the nomination.

    [1] The delegate’s decision was made 24 July 2018.

13. The Tribunal is further satisfied that the evidence before it establishes the following:

    ·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.

14. Therefore, cl.186.233 is met.

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

16. As the Tribunal has found that the first named applicant satisfies the primary criteria for the grant of a Subclass 186 visa, it considers that the applications of the second and third named applicants should be reconsidered as members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

    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.186.233.

    ·     The Tribunal considers that the applications of the second and third named applicants for Employer Nomination (Permanent) (Class EN) visas should be reconsidered as members of the family unit of a person who has satisfied the primary criteria for the grant of visa.

    Amanda Mendes Da Costa
    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.