DAO (Migration)

[2023] AATA 2799

DAO (Migration) [2023] AATA 2799 (18 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr VIET DUNG DAO
Mrs THI THUY TRAN
Master EDWARD DUY QUANG DAO
Master DUY LONG DAO
Master TRAN QUANG HUY LE
Miss TUONG VI DAO

REPRESENTATIVE:  Miss ANDIE LAM (MARN: 1172818)

CASE NUMBER:  1930297

HOME AFFAIRS REFERENCE(S):          BCC2018/5788715

MEMBER:Karen McNamara

DATE:18 August 2023

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 186.223(2) of Schedule 2 to the Regulations.

·The Tribunal does not have jurisdiction in this matter in relation to the second named and third named applicants.

Statement made on 18 August 2023 at 2:14pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – occupation of Finance Broker – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338, 347
Migration Regulations 1994, Schedule 2, cls 186.223, 186.311; rr 1.13, 5.19

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 on 25 October 2019, to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 December 2018. 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 (Cth) (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 Mr Viet Dung Dao (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Mortgage Broker under the occupation of Finance Broker (ANZSCO 222112).

5. On 25 October 2019, the delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations, because on 20 September 2019, the nomination application lodged by JT King Finance Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs.

6. The delegate also found that the second named applicant, Mrs Thi Thuy Tran, third named applicant Master Edward Duy Quang Dao, fourth named applicant Master Duy Long Dao, fifth named applicant Master Tran Quang Huy Le and sixth named applicant Miss Tuong Vi Dao, could not be granted a Subclass 186 visa, as they did not meet the secondary visa criterion (cl.186.311), requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants applied to the Tribunal on 25 October 2019, for review of the delegate’s decision.

8. On 31 July 2023, Mr Viet Dung Dao appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Jessica King (the nominator) in the related matter for the nomination review application (AAT Case file 1928340). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages

9. The applicants were represented in relation to the review. The representative attended the hearing.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.186.223(2).

    Nomination of a position

12. 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 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.

13. 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 reg 1.13A and reg 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. The nominating employer, JT King Finance Pty Ltd applied to the Department for approval of a nomination in relation to the position of Mortgage Broker under the occupation of Finance Broker (ANZSCO 222112). That nomination was refused by the Department and consequently the applicants’ visa applications were refused.

15. JT King Finance Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1928340). On 18 August 2023, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19 of the Regulations. Therefore, the applicant satisfies cl.186.223(2) of Schedule 2 to the Regulations.

    Jurisdiction in relation to the second named and third named applicants

16. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act.  In the case of a decision described in s.338(2) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act.  The term migration zone is defined in s.5(1) of the Act and generally means the Australian States and Territories.

17. Department records indicate the second named applicant (Mrs Thi Thuy Tran) and third named applciant (Master Edward Duy Quang Dao) were offshore at the time of the primary decision on 25 October 2019 and at the time the application for review was lodged on 25 October 2019. In the circumstances, the Tribunal finds that Mrs Thi Thuy Tran and Master Edward Duy Quang Dao, were not in the migration zone at the relevant time. 

18. The applications for review made by Mrs Thi Thuy Tran and Master Edward Duy Quang Dao, do not meet the requirements of s.347 of the Act and accordingly, the Tribunal does not have jurisdiction in relation to the second named and third named applicants.

19. The fourth named applicant, Master Duy Long Dao, fifth named applicant Master Tran Quang Huy Le and sixth named applicant Miss Tuong Vi Dao, applied on the basis of being a member of the family unit of the first named applicant Mr Viet Dung Dao. The applications by Master Duy Long Dao, Master Tran Quang Huy Le and Miss Tuong Vi Dao, will be determined by reference to the outcome of Mr Viet Dung Dao’s application on remittal to the Department for consideration.

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

    DECISION

21. 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(2) of Schedule 2 to the Regulations.

    ·The Tribunal does not have jurisdiction in this matter in relation to the second named and third named applicants.

    Karen McNamara
    Member

    
    

    ATTACHMENT A

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

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Temporary Residence Transition stream; 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.