HWANG (Migration)

[2020] AATA 1296

HWANG (Migration) [2020] AATA 1296 (28 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Min Hwang

CASE NUMBER:  1724984

HOME AFFAIRS REFERENCE(S):          BCC2017/2306022

MEMBER:Wan Shum

DATE:28 April 2020

PLACE OF DECISION:  Sydney

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 28 April 2020 at 3:11pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – subject of an approved nomination – nomination 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 26 September 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 186 visa on 29 June 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 applicant is seeking the visa under the Temporary Residence Transition stream, to work in the nominated position of Cook.

5. The applicant was nominated for this position by Red Pepper Club Pty Ltd, who had identified the applicant in an application for approval of a nomination lodged on the same day. That nomination was refused on 9 August 2017.

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

7. Both the nominator and the applicant have sought review of the refusals. On 28 April 2020, the Tribunal decided to approve the nomination made by Red Pepper Club Pty Ltd 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 position to which this application relates was approved under the Temporary Residence Transition stream: cl.186.223(2). The position must identify the applicant and be the one that was the subject of the declaration that was required to be made as part of the current visa application: cl.186.223(1).

9. In addition, clause 186.223 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.

10. On the visa application form, the applicant provided details of a related nomination that matched the Transaction Reference Number EGOF15BROQ given to one of the nominations made by Red Pepper Club Pty Ltd for the position of Cook. The applicant made the necessary declaration which meets the requirements of cl.186.223(1)(c).

11. 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 28 April 2020 and it has not been withdrawn.

12. 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.

13. The Tribunal is not aware of any ‘adverse information’ (as defined) known to Immigration about the person who made the nomination or a person ‘associated with’ that person.  It does not have any information before it indicating that there have been any court/administrative/disciplinary actions or the like in relation to the nominator.

14. Therefore, all of the requirements of cl.186.223 have been met.

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

    DECISION

16. 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.

    Wan Shum
    Member