Do (Migration)

[2019] AATA 1666

Do (Migration) [2019] AATA 1666 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ngoc Khanh Do
Mrs Thi Thu Huyen Nguyen

CASE NUMBER:  1715090

HOME AFFAIRS REFERENCE(S):           BCC2016/4121311

MEMBER:Penelope Hunter

DATE:31 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 31 January 2019 at 9:08am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN)  visa – Subclass 186 (Employer Nomination Scheme) – direct entry scheme – applicant not subject of approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994, Schedule 2, r 1.13, cls 186.233, 186.242

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 27 June 2017 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 6 December 2016. 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 a computer network and systems engineer.

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 delegate was not satisfied that the applicant was the subject of an approved nomination.

6. The applicant only appeared before the Tribunal on 6 June 2018 to give evidence and present arguments. The hearing was combined with that the applicant’s nominating employer, and Tribunal also received oral evidence from Mr Vinh Khang Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirement of cl. 186.233.

   Nomination of a position

9. The applicant applied for the visa on the basis of being nominated by his employer, Therapy in the Home Pty Ltd in the position of a computer and network systems engineer. An application by Therapy in the Home Pty Ltd to the Department for approval of the nomination was refused by the Department on 29 May 2017. As the requirement that the Minister approve the nomination under cl. 186.233 of Schedule 2 had not been satisfied, the delegate found that the applicant did not meet the criteria in cl. 186.242 of Schedule 2 and refused the application.

10. Therapy in the Home Pty Ltd and the applicants applied to the Tribunal for a review of the decision to refuse the nomination application and the visa application. On 14 January 2019, the Tribunal affirmed the decision to refuse the nomination application by Therapy in the Home Pty Ltd. On 15 January 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act providing this information. The applicants were advised that the information was important as cl. 186.233 requires that the nomination be approved.  The applicant was requested to respond to this information by 29 January 2019. The Tribunal did not receive a response. 

11. 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.

12. 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.

13. The refusal of the related application by Therapy in the Home has been affirmed by the Tribunal on review on 14 January 2019. This was the nomination that was the subject of the declaration when the visa application was lodged by the applicants. This means that there is no nomination before the Tribunal that has been approved. Therefore, Cl 186.233(3) is not met.

14. The Tribunal finds that cl 186.233 is not met.

15. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

16. The second named applicant has applied for the visa on the basis of being a member of the family unit of the applicant. As the applicant has not satisfied the primary criteria for the grant of the visa, it follows that the second named applicant as a member of his family unit also does not meet the criteria for the grant of the visa.

    DECISION

17. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Penelope Hunter
    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.