Han (Migration)

[2019] AATA 4517

Han (Migration) [2019] AATA 4517 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Changsu Han
Mrs Shih Fang Lin
Ms Yu Jung Han

CASE NUMBER:  1813515

HOME AFFAIRS REFERENCE(S):           BCC2017/1875481

MEMBER:Andrew George

DATE:3 October 2019

PLACE OF DECISION:  Darwin

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 of Schedule 2 to the Regulations.

Statement made on 3 October 2019 at 12:20pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – nomination refused – age requirements – employment provided – IELTS met – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 186.211, 186.212, 186.221, 186.222, 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 10 May 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 26 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 Temporary Residence Transition stream, to work in the nominated position of Cook – 351411.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the relevant nomination was refused.

6. The first named applicant appeared before the Tribunal on 26 June 2019 to give evidence and present arguments. This was a combined hearing with the nomination, being case number 1811253. The applicants were represented in relation to the review by their registered migration agent, Ms Tanya Costello (MARN: 1276037) of Nucleus International Recruitment. For the reasons contained in the decision record of case number 1811253 dated 1 October 2019 the Tribunal set aside the decision under review and substituted a decision approving the nomination. For the following reasons, the Tribunal has further concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Licensing, registration and membership requirements

7. Clause 186.211 applies to all primary applicants if it is mandatory in the State or Territory where the nominated position is located to hold a licence, registration or membership of a professional body to undertake tasks of a kind to be performed in the occupation to which the position relates. In these cases, the applicant must hold, or be eligible to hold such licence, registration or membership at the time of the visa application.

8. The nominated occupation of Cook – 351411 does not require licensing, registration, or membership in Darwin. Therefore, cl.186.211 is not applicable.

   Employment will be provided

9. Clause 186.212 requires that the nominated position will provide the applicant with the employment referred to the related nomination application. For the reasons contained in the decision record of case number 1811253, the Tribunal has found that R Shrestha Pty Ltd has the financial capacity to be able to pay the nominated full-time salary for the nominated position for at least 2 years and that the applicant intends to remain employed by the applicant for at least the next 2 years. Therefore, cl.186.212 is met.

   Whether the applicant has engaged in conduct in contravention of the Act

10. An applicant meets cl.186.212A(a) if they have not, in the previous 3 years, engaged in conduct that constitutes a contravention of ss.245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act. In general terms, these provisions place prohibitions on people asking for or receiving a benefit, or offering to provide or providing a benefit, in return for the occurrence of a sponsorship-related event. The meanings of ‘benefit’ and ‘sponsorship-related event’ in this context are provided under s.245AQ of the Act.

11. Alternatively, where the applicant has engaged in such conduct in the previous 3 years, an applicant may satisfy cl.186.212A(b) if it is reasonable to disregard that conduct.

12. The Tribunal is satisfied that the applicant has not engaged in conduct in contravention of the Act in the past three years. Therefore, cl.186.212A is met.

    Age requirements

13. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either meet certain age requirements, or be in a class of persons specified in the relevant legislative: cl.186.221. In this case, as the visa application was made before 18 March 2018, the applicant must not have turned 50 at the time of application.

14. In the present case the applicant date of birth is 3 February 1979 and he was not aged 50 at the time of application. Therefore, cl.186.221 is met.

    English language proficiency

15. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency, or be in a class of persons specified in the relevant legislative instrument: cl.186.222. For visa applications made before 1 July 2017 the level required is vocational English and for visa applications made on or after 1 July 2017 the level required is competent English.

16. ‘Vocational English’ is defined in r.1.15B and ‘competent English’ is defined in r.1.15C of the Regulations. For both levels, a person will meet the definition if he or she either:

    ·undertook a specified language test in the three years preceding the visa application and achieved a specified score; or

    ·holds a specified passport.

17. In this instance, having regard to the date of visa application, the required level is vocational English. Vocational English requires a score of at least 5 for each of the 4 test components of the International English Language Testing System (IELTS). The Tribunal notes that Mr Han achieved such a score in his IELTS dated 15 December 2014. Therefore, cl.186.222 is met.

    Nomination of a position

18. 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. 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 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.

19. The Tribunal notes its findings in case number 1811253 and is satisfied of the above. Therefore, cl.186.223 is met.

20. The Tribunal considers that the secondary applicants should be reconsidered in light of its findings about the first named applicant.

    DECISION

21. 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.186.223 of Schedule 2 to the Regulations.

    Andrew George
    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.