Huang (Migration)

[2020] AATA 301

Huang (Migration) [2020] AATA 301 (11 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kuan-Chih Huang
Ms Chiu-Lien Liu

CASE NUMBER:  1716848

HOME AFFAIRS REFERENCE(S):          BCC2016/4005193

MEMBER:George Hallwood

DATE:11 February 2020

PLACE OF DECISION:  Adelaide

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.186.223 of Schedule 2 to the Regulations.

Statement made on 11 February 2020 at 12:36pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Restaurant Manager – subject of an approved nomination – nomination now approved by the Tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 18 July 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 28 November 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 Temporary Residence Transition stream, to work in the nominated position of Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.223(2) of Schedule 2 to the Regulations because at the time of the decision the applicant was not the subject of an approved nomination, and the dependent applicant had not made any claim towards satisfying this class of visa other than as a member of the applicant’s family unit.

6. The applicants appeared before the Tribunal on 6 February 2020 to give evidence and present arguments. This was a combined hearing with the nominator’s, Mico Company Pty Ltd (Mico) AAT case number 1712087. The Tribunal also received oral evidence from Mr Michael Thum, a director of Mico. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicants were represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the primary applicant meets the requirements of cl.186.223 of the Regulations.

Nomination of a position

1. 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.

2. 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.

3. The Tribunal has before it the departmental file which includes the visa application and supporting documentation. Further material has also been provided by the applicant during the course of the review.

4. The evidence includes an employment contract dated 1 July 2019 which states that the applicant will be employed as a Restaurant Manager  “… for a minimum of 4 years, with the option of continuing in the position after the end of 4 years.” . At the hearing, the applicant confirmed that he has been employed full time as a Restaurant Manager in Australia in the nominating business since April 2013 and continues to be employed in that position.

5. The Department's records show that Mr Huang was granted a subclass 457 visa on 10 April 2013 which was valid until 10 April 2017.

6. The Tribunal approved the relevant nomination by Mico, file number 1712087, on 11 February 2020.

7. On the basis of the evidence before it the Tribunal is satisfied that:

   ·   the position to which the application relates, Restaurant Manager - Mico, is the position nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3);

   ·   Mr Huang was identified as the subclass 457 visa holder in the nomination by Mico;

   ·   at the time of the current visa application Mico operated the Mi-Ne Sushi restaurant (until 22 June 2019) and Ramen Samurai restaurant which is still operating;

   ·   the position is the same position as that in the visa application declaration made by the applicant;

   ·   the nomination of Mr Huang by Mico has not been withdrawn;

   ·   Mico have indicated that with just one restaurant the business has as great a requirement for the applicant as they did with both restaurants. They also indicated they are in negotiations for a site to open a second restaurant again.

   ·   the position is still available to the applicant; and

   ·   the nomination of Mr Huang by Mico was approved on 11 February 2020, and this approval date is not more than six months before the visa application was made.

8. I find 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 in accord with cl.186.223.

9. Therefore, cl.186.223 is met.

CONCLUDING PARAGRAPH

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

DECISION

1. 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.186.223 of Schedule 2 to the Regulations.

George Hallwood
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.