Chuang (Migration)

[2020] AATA 3992

Chuang (Migration) [2020] AATA 3992 (29 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Wei-Che Chuang
Mrs Hsiao-Hsin Lu
Mr Cheng-Yu Chuang

CASE NUMBER:  1729878

HOME AFFAIRS REFERENCE(S):          BCC2017/1683418

MEMBER:Ian Berry

DATE:29 July 2020

PLACE OF DECISION:  Brisbane

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

·cl.186.223 of Schedule 2 to the Regulations

The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) 186 visas for reconsideration, with the direction that the secondary applicants meet the following criteria for subclass (Employer Nomination Scheme)186 visas

·Cl.186.311 of Schedule 2 to the Regulations

Statement made on 29 July 2020 at 11:40am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Maintenance Planner –nomination approved –subject of an approved nomination – members of the family unit of the first named applicant –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cls 186.223, 186.311

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 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 11 May 2017. The delegate refused to grant the visas on 22 November 2017.

2. The delegate made the decision on the basis that evidence of the applicant did not have an approved nomination as required by cl.186.223 to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. On 6 February 2020 the Tribunal approved the applicant’s employer’s nomination, where he is identified as the nominee in respect of the position Maintenance Planner. Considering that evidence, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

4. The Tribunal is satisfied that to the applicant’s employer has not withdrawn the nomination and, in the course of approving the nomination, it found there was no relevant adverse information known to migration.

5. The Tribunal makes the finding that to the first named applicant is a valued employee of his employer and that the position of the Maintenance Planner which he now undertakes with the employer is still available to him.

6. The Tribunal finds that the applicants made their application on the day the first named applicant’s employer made the nomination application.

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 applicants based on the material before it, pursuant to s.360(2)(a) of the Act.

8. Having made those findings, the Tribunal finds that the first named applicant satisfies the criteria in clause 186.223.  The Tribunal sets aside the decision to refuse to grant the visas for that reason and returns the matter to the Department.  The Minister’s delegate will then consider whether the first named applicant meets all other relevant primary criteria for the grant of the visa.

9. Clause 186.311 sets out the secondary criteria for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time the decision is made on the application.

10. Clause 186.311 requires that the secondary applicants are members of the family unit of a person (the first named applicant) who holds a subclass 186 visa now granted on the basis the first named applicant satisfies the primary criteria for the grant of the visa, and that the secondary applicants have made a combined application with the first named applicant.

11. The tribunal finds that the secondary applicants are members of the family unit of the first named applicant, who has met the criteria in cl.186.223. The Tribunal finds the secondary applicants, being members of the family unit, meet the requirements in cl.186.311.

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

    DECISION

13. The Tribunal remits the applications for the Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass (Employer Nomination Scheme) 186 visas17:

    •          Cl.186.223 of Schedule 2 to the Regulations

    The Tribunal remits the applications for the Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the secondary applicants meet the following criteria for a Subclass 186 (Employer Nomination Scheme) visas:

    ·Cl.186.311 of Schedule 2 to the Regulations

    Ian Berry
    Member