Gan (Migration)

[2021] AATA 3581

Gan (Migration) [2021] AATA 3581 (6 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Soon Fatt Gan

CASE NUMBER:  1818175

HOME AFFAIRS REFERENCE(S):          BCC2017/2082597

MEMBER:Susan Reece Jones

DATE:6 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl 186.223 of Schedule 2 to the Regulations

Statement made on 06 September 2021 at 10:06am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Pastrycook –nomination approved –subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 186.223

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 12 June 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 June 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 (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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Pastrycook (ANZSCO: 351112) for nominator Bonbons Bakery Franchisee, the Trustee for BD & LPJ Family Trust.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.223 of Schedule 2 to the Regulations because the applicant’s nomination did not satisfy r.5.19(3)(d) of the Regulations because the evidence provided did not demonstrate the applicant had the capacity to employ the employee on a full time position for at least 2 years.

6. The applicant appeared before the Tribunal on 8 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator, manager and director, Mr Brian Downes.

7. The applicant was represented in relation to the review by its registered migration agent, Mr Damien Nugara of CPD Immigration Services.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the relevant nomination has been approved as required by cl.186.223.

    Nomination of a position

11. 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.

12. 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.

13. The applicant applied for a visa on the basis of a nomination made by the Trustee for BD & LPJ Family Trust which trades as the Bonbons Bakery Franchise. The employer nomination in which the applicant is identified as the relevant 457 visa holder and against which he made the relevant declaration at the time of the visa application, was refused by the Department on 12 June 2018. 

14. The nominator applied to the Tribunal for review of the decision not to approve the relevant nomination. On 6 September 2021, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination.

15. As the relevant nomination in respect of the applicant has now been approved, the applicant meets the requirements in cl.186.223(2). Therefore, given the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

16. As the Tribunal is remitting the applicant of the first name visa applicant with a finding that she meets the requirements of clause.186.223(2), the remaining criteria for the applicant should now be reconsidered.

    DECISION

17. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl 186.223 of Schedule 2 to the Regulations

    Susan Reece Jones
    Member

    
    

    ATTACHMENT A

    186.223(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 subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; 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.