HUYNH (Migration)

[2019] AATA 4904

HUYNH (Migration) [2019] AATA 4904 (12 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kim Loan HUYNH
Mr Hung Quang HO
Miss Thu Ky HO

CASE NUMBER:  1720659

HOME AFFAIRS REFERENCE(S):           BCC2017/737540

MEMBER:Wan Shum

DATE:12 November 2019

PLACE OF DECISION:  Sydney

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 12 November 2019 at 12:49pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Pastry Cook – subject of an approved nomination – 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 28 August 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 186 visas on 23 February 2017.

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 Pastry Cook.

5. The applicant was nominated for this position by The Trustee for Cronulla Bake House Unit Trust, who had identified the applicant in an application for approval of a nomination lodged on the same day. That nomination was refused on 24 July 2017.

6. As a consequence, the delegate refused to grant the visas because there was not an approved nomination in respect of the applicant, which meant she did not meet cl.186.223 of Schedule 2 to the Regulations.

7. Both the nominator and the applicants have sought review of the refusals. On 12 November 2019, the Tribunal decided to approve the nomination made by The Trustee for Cronulla Bake House Unit Trust, and for the following reasons, has concluded that this matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the criteria regarding the nomination of a position.

9. It is requirement  for the Subclass 186 visa in the Temporary Residence Transition stream that the position to which the application relates is the subject of an application for approval of a nomination in that stream which identifies the applicant as the holder of a Subclass 457 visa: clause 186.223(1). 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.

10. 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.

11. On the visa application form, the applicant provided details of a related nomination that matched the Transaction Reference Number EGODYFL9DP of the nomination made by The Trustee for Cronulla Bake House Unit Trust for the position of Pastry Cook. The applicant made the necessary declaration which meets the requirements of cl.186.223(1)(c).

12. The relevant nomination sought to meet the requirements of r.5.19(3) and identified the applicant as the 457 visa holder. The Tribunal approved the nomination on 12 November 2019 and it has not been withdrawn.

13. The applicant is currently employed by the nominator and the Tribunal finds that the position is still available to the applicant. The visa application was made prior to the nomination being approved. Therefore the Tribunal finds that the application was not made more than six months after the nomination of the position was approved.

14. In relation to ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person, the Tribunal is not aware of any court/administrative/disciplinary actions or the like against about the person who made the nomination or a person ‘associated with’ that person. There is information before the Tribunal of an investigation by FWO into the nominator which was finalised without any findings. The Tribunal also located information online regarding a possible penalty notice issued on or around 27 March 2018 by the NSW Food Authority in relation to one of the bakeries operated by the nominator. The owner claimed that a warning was received but that no penalty notice was issued. The Tribunal does not consider that the investigation or warning amount to ‘adverse information’ (as defined) in this case.

15. Therefore, cl.186.223 is met.

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

    DECISION

17. 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.

    Wan Shum
    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.