He (Migration)

[2021] AATA 433

He (Migration) [2021] AATA 433 (15 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Liang He
Ms Xiaomin Zhou
Master Yuzhou He
Master Zhanhao He

CASE NUMBER:  2018345

HOME AFFAIRS REFERENCE(S):          BCC2017/2271539

MEMBER:R. Skaros

DATE:15 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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.186.233(3) of Schedule 2 to the Regulations.

Statement made on 15 February 2021 at 9:16am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Federal Circuit Court remittal – direct entry stream – subject of approved position nomination – refusal of related nomination application set aside on review – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.233(3)

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 30 October 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 27 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 (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 Chief Executive or Managing Director (ANZSCO 111111) at ShunKang Investment Aust Pty Ltd.

5. On 15 August 2017 the Minister refused to approve the nomination for the position made by the applicant’s sponsor. As such, the delegate found that the applicant was not subject of an approved nomination as required by cl.186.233(3) of Schedule 2 to the Regulations and refused to grant the visa to the applicants.

6. The applicants applied to the Tribunal for review of this decision on 6 November 2017.  An application for review had also been lodged in relation to the decision to refuse the nomination.

7. On 3 September 2018 the Tribunal affirmed the decision of the delegate to refuse to approve the nomination for the position. Accordingly, on 27 November 2018 the Tribunal also affirmed the decision of the delegate to refuse to grant the subclass 186 visa to the applicants, finding that the applicant was not subject of an approved nomination as required by cl.186.233(3).

8. On 28 January 2020 the Federal Circuit Court of Australia (FCCA) remitted the decision to refuse to approve the nomination to the Tribunal to redetermine according to law. On 2 September 2020 the Tribunal set aside the decision of the Department to refuse to grant the related nomination and substituted a decision approving the nomination.

9. On 18 December 2020 the FCCA determined that the Tribunal’s 27 November 2018 decision to refuse the subclass 186 visas to the applicants was affected by jurisdictional error.

10. On 28 December 2020 and again on 20 January 2021, the applicants’ representative requested the Tribunal expedite the decision in relation to this matter and submitted evidence that the linked nomination has been approved.

11. The Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant is subject to an approved nomination as required by cl.186.223 of Schedule 2 to the Regulations.

    Nomination of a position

14. 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. In addition, this criterion also requires that:

15. The person who will employ the applicant is the person who made the nomination and that the nomination has been approved.

16. The background to this application is set out in detail above.

17. On 2 September 2020 a decision was made to approve a nominated position in favour of the applicant for the occupation of Chief Executive or Managing Director (ANZSCO 111111) at ShunKang Investment Aust Pty Ltd. The second, third and fourth named applicants were also included in the nomination.

18. The Tribunal is satisfied that the position for which the applicant has been nominated, and against which the applicant made the relevant declaration in the visa application, has been approved. On this basis, the Tribunal finds that cl.186.233(3) of Schedule 2 to the Regulations is met.

19. Given these findings, the appropriate course is to remit the visa applications for the first, second, third and fourth named applicants to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the applications 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.186.233(3) of Schedule 2 to the Regulations.

    R. Skaros

    Senior 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.